19-005890 Outfront Media, Llc vs. Florida Department Of Transportation Status: Closed Recommended Order on Monday, June 15, 2020.

Summary: Applications for sign permits along Interstate I-275 must be denied for failure to comply with the spacing requirement imposed by section 479.07(9)(a)1., Florida Statutes.

S TATEMENT OF T HE I SSUE

Whether Petitioner ’ s application s for outdoor advertising permit s should

be gr anted or denied.

P RELIMINARY S TATEMENT

On April 18, 2017, Outfront Media, LLC , ( Petitioner ), filed two outdoor

advertising permit applications with the Department of Transportation,

(Department) , seeking approval of a double - sided billboard structure to be

located at 1131 N orth Church Avenue, Tampa, Florida. The Department

denied the applications on May 16, 2017 . Petitioner filed a petition for hearing to challenge the denials on J une 16, 2017. Petitioner filed an

amended petition for hearing on May 17, 2018 , which was forwarded to the

Division of Administrative Hearings on November 5, 2019 . T he final hearing

was scheduled for February 11 through 13, 2020 , at the request of the

parties. On December 27, 2019, Petitioner was granted leave to file a second

amended petition for hearing.

The final hearing was held on February 11, 2020 , and was completed in

one day . At the final hearing, Petitioner presented the testimony of Herbert

McClelland, and Petitioner ’ s Exhibits 1 through 48 were admitted into

evidence. Respondent presented the testimony of William Benson and

Ke nneth Pye . Petitioner filed a motion to exclude Mr. Pye as an expert

witness. Petitioner ’ s motion was denied as moot because the Respondent did

not call Mr. Pye as an expert witness. Respondent ’ s Exhibits 1 through 16

were admitted into evidence.

A two - v olume Transcript was filed on March 4, 2020 . Petitioner filed two

motions requesting extensions of time to file proposed recom mended orders.

The motions were not opposed by Respondent and were granted. The parties

timely filed Proposed Recommended Orders , which have been considered in

the prepara tion of this Recommended Order.

F INDINGS OF F ACT

1. The Department is the state agency responsible for regulating outdoor

advertising along interstate and federal - aid primary highways in accordance

with chapter 479 , Florida Statutes.

2. Petitioner is in the outdoor advertising business . On April 18, 2017 ,

Petitioner submitted two outdoor advertising permit applications for a

double - sided billboard structure to be located at 1131 N orth Church Avenue,

Tampa, Florida ( P roposed S ign) . Each permit application w as for an

individual sign face o n the Proposed S ign. The location for the Proposed S ign

was west o f Dale Mabry Highway, a federal - aid primary highway, and north

of I - 275, an interstate highway.

3. The Department fou nd Petitioner ’ s applications to be complete , and o n

April 19, 2017, the Department forwarded the applications to its field

investigations contractor, Cardno TBE , to conduct a field review at the

Proposed Sign location . During the field review, it was deter mined that the

location for the P roposed S ign was 749.76 feet away from an existing sign

owned by Clear Channel Outdoor – Clearwater (Clear Channel) , bearing

permit tag number AB065 (Sign AB065) . Sign AB065 faces south , and is one

face of a double - sided sign structure. 2 Sign AB065 is located east of Dale

Mabry Highway , and north of I - 275.

4. It is undisputed that the P roposed S ign and S ign AB065 are visible

from I - 275, are within 1 , 500 feet of each other, and are located on the same

side of I - 275.

2 The other face of Clear Channel ’ s double - sided sign structure bears permit tag number

AB141 (Sign AB141). Sign AB141 is not, however, visible from I - 275. Because it is not visible

from I - 275, Sign AB141 is not subject to the spacing requirements applicable to interstate

highways and does not create a spacing conflict for the Proposed Sign, even though it is also

located within 1,500 feet of the Proposed Sign.

5. The Dep artment denied Petitioner ’ s permit applications , citing section

479.07(9)(a) , because the Proposed S ign location is within 1,500 feet of S ign

AB065 . 3

6. While reviewing Petitioner ’ s applications, the Department noticed that

it s outdoor advertising database identified S ign AB065 as ha ving been

permitted to Dale Mabry Highway . T he Department up d ated the database to

reflect that S ign AB065 is permitted to I - 275 , because Sign AB065 is visible

to I - 275 , and I - 275 has more str ingent permitting requirements than D ale

Mabry Highway . Th is change to the Department ’ s database did not require

any action from Clear Channel and the actual location o f S ign AB065 did not

change .

7. While reviewing Petitioner ’ s applications , the Department also noted

that S ign AB065 presents a spacing conflict with a double - sided digital sign

owned by Clear Channel (Digital Sign) . The D igital S ign i s located on the

north side of I - 275, east of Sign AB065 , and is also visible from I - 275 . The

D igital S ign is within 1,500 feet of Sign AB065, but is more than 1,500 feet

away from the Proposed S ign, and therefore does not cre ate a spacing conflict

for the Proposed S ign.

8. Clear Channel fil ed permit applications for the Digital S ign on May 17,

2016 , before the applications for the Proposed Sign wer e submitted by

Petitioner . During its field review of the Digital Sign applications , the

Department noted a spacing conflict with an existing Clear Channel double -

sided billboard structure bearing tag numbers BG841 and BZ148 (Sign

BG841 and Sign BZ148) . Th e Department required Clear Channel to re move

Sign BG841 and Sign BZ148 as a condition of the Digital S ign permits . The

Department faile d, however, to notice that Sign AB065 also c reated a spacing

conflict with the Digital Sign, and removal of Sign AB 065 w as not a condition

of the D igital S ign permit s .

3 Other grounds for disapproval were cited but have since been resolved by the parties.

9. After r ecognizing its error in permitting the D igital S ign , the

Department reclassified S ign AB065 and the Digital S ign as nonconforming

signs and sent Clear Channel notices advising it of this change in s tatus . A

nonconforming sign is a sign that was lawfully erected but no longer

conforms to applicable laws or regulations. Clear C hannel did not challenge

th e re c lassification of Sign AB065 and the Digital Sign as nonconforming

signs , and that reclassificat ion became final .

10. Petitioner alleged in it s second amended petition that S ign AB065 is

an unlawful sign and should not be considered when enforcing the spacing

requirements applicable to interstate highways. At the final hearing,

however, Petitioner ’ s counsel confirmed the withdrawal of its allegation that

Sign AB065 is an unlawful sign:

THE COURT: Okay. Do I have -- are you asking

me, in this case, Mr. Smith, to declare the Clear

Channel AB065 as an unlawful sign?

MR. SMITH: I ’ ll make sure I unders tand the

question. First of all, we do not seek to have anything done to Clear Channel or to their signs.

THE COURT: Okay.

MR. SMITH: We ’ re just saying the action taken by

the Department were unlawful, and they should not use AB065 as a reason to turn down our

application, amongst other things.

THE COURT: Well, I ’ m not suggesting I have the

authority to do this anyway, but, just to be clear,

you ’ re not asking me to issue a recommended order

that determines that the Clear Channel AB065

sign is an unlaw ful sign?

MR. SMITH: Correct, sir.

11. Despite this representation from counsel , Petitioner asserts in its

Proposed Recommended O rder that S ign AB065 is an unlawful sign. Based

upon counsel ’ s representation at the final hearing, Petitioner ’ s allegation that

Sign AB065 is an unlawful sign is deemed withdrawn.

12. Regardless, Petitioner failed to prove that S ign AB065 is an unlawful

sign . Sign AB065 was erected pursuant to a lawful permit and its location

and height have remained unchanged since it was fi rst permitted in 1980.

The fact that Sign AB065 was reclassified by the Department as a

nonconforming sign d o es not make it an illegal sign.

13. T he Department admits that it permitted the Digital Sign in error ; the

Department simply failed to notice that the proposed location for the D igita l

S ign was within 1 , 500 feet of S ign AB065 before t he Digital S ign permit s

were approved . If the Department had noticed this spacing conflict during its

review of Clear Channel ’ s application s for the Digital S ign, it wou ld have

denied the permit , o r re quired Clear Channel to remove S ign AB065 as a

condition of the Digital Sign permit s .

14. The Department has not taken any action to revoke Clear Channel ’ s

permit s for S ign AB065 or the Digital S ign , and both signs are curr ently

permitted as nonconforming signs .

C ONCLUSIONS OF L AW

15. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this case . §§ 120.569 and 120.57(1), Fl a. Stat.

16. The Department is authorized to regulate ou tdoor advertising signs

located along interstate and federal - aid primary highways pursuant to

chapter 479, Florida Statutes .

17. As the party seeking permi t s from the Department, Petitioner has the

burden of proving its entitlement to the permit s by a pre ponderance of the

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

1981). Petitioner failed to prove that the location of the Proposed S ign

complies with the spacing requirements imposed by section 479.07(9)(a)1 . ,

and its permit applications must be denied for this reason.

18. Section 479.07(9)(a) provides:

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 h undred 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 minimum 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

department 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. (Emphasis added).

Sign AB065 has been permitted since 1980, it is on the sam e side of I - 275 as

the P roposed S ign, and it is within 1,500 feet of the P roposed S ign. As such,

the permits Petitioner seeks for the Proposed S ign “ may not be granted. ”

19. Petitioner argues that the location of S ign AB065 should be

disregarded when apply ing the spacing requirement applicable to interstate

highways , because S ign AB065 was permi tted to Dale Mabry Highway,

instead of I - 275, when Petitioner ’ s permit applications were submitted to the

Department. Although factually true, this distinction is im material because a

sign must meet the permitting requirements applicable to all highways to

which it is visible , whether permitted to a particular highway or not .

§ 479.07(9)(a) , Fla. Stat. The re is no dispute that the Proposed Sign and S ign

AB065 are visi ble to I - 275. As a result, the location of both signs must be

considered when applying the 1,500 feet spacing requirement applicable to

interstate highways.

20. Petitioner points out, correctly, that section 479.07(9)(a)1. should have

prevented Clear Chann e l from obtaining permits for the Digital S ign located

on the east side of Sign AB065 , because th e Digital Sign is also visible to I -

275 and is located within 1,500 feet of Sign AB065. Petitioner ’ s frustration is

understandable, but the Department ’ s admitt ed mistake in permit ting the

Digital S ig n — spacing conflict notwithstanding — does not excuse the proper

application of th e statute in this case. See Divosta and Company, Inc. v. Dep ’ t

of Transp . , Case No. 98 - 5401 at ¶ 41 ( Fla. DOAH May 12, 1999 ; DOT July 28,

1999) , aff’d per curiam, 756 So. 2 d 1019 (Fla. 4th DCA 200 0) ( “ [An agency]

has an obligation to not repeat its previous mistakes and to carry out the

Legislature ’ s will and intent, as expressed in the statute. To hold otherwise

would, in effect, give the agency authority it should not have: the authority to

vitiate an enactment of the Legislature by its actions. ” ); and Malibu Lodging

Investments, LLC v. Dep ’ t of Transp . , Case No. 09 - 1524 at ¶ 58 ( Fla. DOAH

Aug . 25, 2009; DOT Nov. 19, 2009 ), aff ’ d per curia m, 43 So. 3d 59 (Fla. 3d

DCA 2010 ).

21. Petitioner cites Maverick Media Group v. Dep artmen t of

Transp ortation , 791 So. 2d 491 (Fla. 1st DCA 2001) for the proposition that

the location of S ign AB065 must be disregarded when applying the spacing

requirement , because S ign AB065 itself does not meet the spacing

requirement . Petitioner ’ s reliance on Maverick Media is misplaced.

22. In Maverick Media , the applicant ’ s permit was denied because of a

spacing conflict with a sign owned by a third party. The court h eld that the

applicant had standing to challenge the legality of the third party ’ s sign

because the location of that sign was cited by the Department as a basis to

deny the applicant ’ s permit. Id . at 495 .

23. Like the applicant s in Maverick Media , Petitio ner has standing to

challenge the legality of S ign AB0 65 because it s location was cited as the

basis for denying the permits for the Proposed Sign. Petitioner declared at

the final hearing, however, that it does not seek a determination that Sign

AB065 is an illegal sign in this case . Moreover , the facts here are that Sign

AB065 ’s location has not changed since it was first permitted in 1980 , and

there is no evidence from which the undersigned can determine that Sign

AB065 has ever been an illegal sign . T he fact that S ign AB065 ’ s status was

later changed to nonconforming is of no benefit to Petitioner i n this case ; a

sign is not “ illegal ” just because it is nonconforming. See § 4 79.24(1), Fla.

Stat. ( “ A sign loses i ts nonconforming status and becomes illegal at such time

as it fails to be permitted or maintained in accordance with all applicable

laws, rules, ordinances, or regulations other than the provision that makes it

nonconforming . ” ) .

24. Petitioner argues that the Department has an obligation under se ction

479.08 to revoke the Digital Sign permit s , or require Clear Channel to correct

the spacing violation by removing Sign AB065. T he Department is not

obligated to do either under section 479.08 . Section 479.08 provides in

pertinent part:

The department may deny or revoke a permit

requested or granted under this chapter in any case

in which it determines that the application for the permit contains false or misleading information of material consequence. The department may revoke

a permit granted under t his chapter in any case in

which the permittee has violated this chapter, unless such permittee, within 30 days after the receipt of notice by the department, complies with

this chapter. ( Emphasis added ) .

This statute authorizes the Department to take ac ti on to revoke a permit for

the specified reasons , but it does not require it. Even if the Department

revoked the permit s for the Digital Sign, such action would not benefit

Petitioner here , because the Digital S ign does not create a spacing conflict for

t he Proposed S ign.

25. Petitioner alleged in its second amended petition that equitable

estoppel prevents the Department from denying its permits. Petitioner

appears to have abandoned this argument as equitable estoppel was not

raised in Petitioner ’ s Propos ed Recommended O rder. R egardless, Petitioner

has not proven the elements required to apply estoppel against the D epartment, which are: (1) a representation as to a material fact that is

contrary to a later asserted position; (2) reliance on that representa tion; and

(3) a change in position detrimental to the party claiming estoppel, caused by

the representation and reliance thereon. Associated Indus. Ins. Co. v. Dep’t of

Labor & Empl. Sec. (Dep ’ t of Fin. Servs.) , 923 So. 2d 1252, 1255 (Fla. 1st DCA

2006). T he additional “exceptional” circumstances that must be established to

apply estoppel against a state agency consist of: (1) conduct by the

government that goes beyond mere negligence, and (2) a showing that

estoppel will not unduly harm the public interest . Id . Petitioner has failed to

satisfy all of these elements. Accordingly, there is no justification to apply

e quitable estoppel against the Department in this case.

26. Petitioner also argues that the “ policy ” the Department applied to

reclassify Sign AB 065 and the Digital Sign as nonconforming signs is an

unadopted rule, and therefore cannot be applied as a basis to deny

Petitioner ’ s permits . Florida law prohibits agency action based on an

unadopted rule. Section 120.57(1)(e) 1. , Florida Statutes, provide s :

An agency or an administrative law judge may not

base agency action that determines the substantial interests of a party on an unadopted rule or a rule

that is an invalid exercise of delegated legislative authority. This subparagraph does not preclude a pplication of valid adopted rules and applicable

provisions of law to the facts.

As a threshold matter, t he D epartment argues that Petitioner ’ s unadopted

rule challenge must be brought in a separate petition filed directly with the

Division of Administrat ive Hearings pursuant to section 120.56 (4) . The

Department overlooks section 120.57(1)(e) 2 ., which provides:

In a matter initiated as a result of agency action

proposing to determine the substantial interests of

a party, the party ’ s timely petition for hea ring may

challenge the proposed agency action based on a

rule that is an invalid exercise of delegated

legislative authority or based on an

alleged unadopted rule.

Petitioner can raise an unadopted rule challenge within this substantial

interests proceedi ng, but it must demonstrate that the alleged unadopted

rule is a basis for the proposed agency action . The proposed agency action

here is the denial of Petitioner ’ s permits. The sole basis for the denial of

Petitioner ’ s permits is the 1,500 fee t spacing re quirement applicable to

interstate highways found in section 479.07(9)(a)1 . The denial of Petitioner ’ s

permits is not based upon an unadopted rule.

27. All of the arguments Petiti oner raised have been carefully considered,

but the fact remains that Petitio n er ’s application s do not comply with the

spacing requirement applicable to interstate highways found in section

479.07(9)(a)1 ., and its applications must be denied for t his reason .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Transportation enter a final order

denying Petitioner ’ s sign permit applications.

D ONE A ND E NTERED this 15th day of June , 2020 , in Tallahassee, Leon

County, Florida.

B RIAN A. N EWMAN

Administrative Law Jud ge

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 15th day of June , 2020 .

C OPIES F URNISHED :

Richard E. Shine, Esquire

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

Elizabeth Somerstein Adler, Esquire Greenspoon Marder LLP

Suite 1800

200 East Broward Boulevard

Fort Lau derdale, Florida 33301

(eServed)

Glenn N. Smith, Esquire

Greenspoon Marder, P.A.

Suite 1800

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

David Tropin, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street,

Tall ahassee, Florida 32399

(eServed)

Austin M. Hensel, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

Andrea Shulthiess, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Bu ilding

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

(eServed)

Kevin J. Thibault, P.E., Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 57

Tallahassee, Florida 32399 - 0450

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.