88-005227RU Outdoor Media Of Pensacola, Inc. vs. Department Of Transportation Status: Closed DOAH Final Order on Thursday, December 29, 1988.

Summary: DOT's policy that sign permits issued before 7/1/84 aren't subject to some statutes adversely affects Pet & is invalid for failure to promulgate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARING

OUTDOOR MEDIA OF PENSACOLA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-5227RU

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

___________________________________)

FINAL ORDER

INTRODUCTION AND ISSUES

By a Petition filed October 21, 1988, Petitioner sought a determination,

pursuant to Section 120.56, Florida Statutes, that a non-rule policy of the

Department of Transportation was a rule that: (a) was not adopted properly

under Chapter 120 Florida Statutes, and (b) was an invalid exercise of delegated

legislative authority.

APPEARANCES

For Petitioner: J. Arby Van Slyke, Esquire

216 South Tarragona Street, Suite A

Post Office Box 13244

Pensacola, Florida 32591

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32301

BACKGROUND AND PROCEDURE

On October 28, 1988, the undersigned Hearing Officer was assigned this case

by the Director of the Division of Administrative Hearings. By Notice of

Hearing issued November 2, 1988, a formal hearing was timely scheduled for

November 23, 1988. Prior to formal hearing, the parties filed a joint

Prehearing Stipulation whereby certain facts were admitted. Thereafter, the

parties orally notified the undersigned that they would file proposed final

orders and two depositions and submit the cause for determination upon these and

the joint Prehearing Stipulation, without formal hearing.

Respondent's Proposed Final Order was filed November 23, 1988. Depositions

of Gary Kissinger and Phil Brown were filed November 30, 1988. Petitioner's

Memorandum with attachments was filed December 8, 1988. Specific rulings

pursuant to Section 120.59(2), Florida Statutes, upon each party's submittal

have been made in the Appendix hereto.

FINDINGS OF FACT

1. Petitioner submitted application for state outdoor advertising permits

which were received in the Department of Transportation (DOT) District Office on

August 8, 1988, for a location on U.S. 90 (Scenic Highway), a federal aid

primary highway in Pensacola, Escambia County, Florida. Petitioner was denied

the permits on the ground that permits had been issued to another outdoor

advertising company prior to July 1, 1984, for a location less than a thousand

feet from Petitioner's proposed site on the same side of the highway. There

have been no tags displayed or sign maintained at the earlier site since

issuance of the permits.

2. It is DOT's interpretation that for permits issued prior to July 1,

1984, permittees are not required to display tags within 30 days and erect signs

within 270 days as provided in Section 479.07(5)(a), Florida Statutes, effective

July 1, 1984. DOT nonetheless requires pre-1984 permits to comply with sections

479.07(5)(b) and (8)(a), Florida Statutes. DOT's interpretation is not in

writing and has not been promulgated as a rule pursuant to Sections 120.54 or

120.55, Florida Statutes.

3. Petitioner is in the outdoor advertising business, particularly off-

premises signs, and is so licensed. The spacing impediment caused by the

earlier permits is the only basis for denial of Petitioner's permit applications

by DOT as Petitioner meets all other requirements. Petitioner will have to

confront the agency's "interpretation" with each permit application it makes.

Petitioner is currently challenging the specific above-referenced permit denials

in Section 120.57(1) proceedings which both parties herein opposed consolidating

with the instant rule challenge when the undersigned suggested that possibility.

Respondent has not challenged Petitioner's standing to bring this rule

challenge, and Petitioner has demonstrated standing to bring it.

4. The Petitioner asserts that the agency's acknowledged foregoing

interpretation of the named statutes constitutes an arbitrary and capricious

unpromulgated rule, applied without legislative authority and prejudicing

Petitioner and all like-situated lessees of off-premises signs because it

creates a perpetual grandfather clause for sign permits in existence prior to

July 1, 1984, and new applicants post-1984 cannot know where earlier permits

have been issued due to the lack of DOT enforcement of tag posting and sign

maintenance requirements. Phil Brown, DOT Right of Way Specialist, testified by

deposition that, indeed, if a pre-1984 permittee never erects a sign or posts

tags, the spacing impediment can only be located through DOT records, in this

case, a computer search.

5. Phil Brown relied on DOT training sessions which advised him that

Section 479.07(9), Florida Statutes, requires the current agency

interpretation/non-enforcement of Section 479.07(5)(a) to pre-1984 permittees,

and he applied it to Petitioner's application. In so doing, he utilized Section

479.05(9) so as to count the thousand foot spacing requirement for the permit

site which had been requested by the Petitioner not from a permitted sign (which

is the statutory phrase contained in Section 479.09) or from a sign in

existence, i.e. a sign already erected, or from a tagged erected sign, or from a

displayed tag, but instead counted the thousand feet, as he had been directed,

from the site described on the permit issued pre-1984.

6. Gary Kissinger, designated by DOT as its employee most knowledgeable

about the application of statutes and rules to outdoor advertising, testified by

deposition that pre-1984 outdoor advertising sign permits can, absent a future

law change, go into perpetuity without the holder thereof ever erecting a sign

or posting a metal tag as long as they keep renewing and paying their fees, even

though Mr. Kissinger understood the purpose of the 1984 amendments to be the

prevention of advertisers "stockpiling" unused sites/permits from the enactment

date forward. No evidence established Mr. Kissinger as the drafter of the

legislation or of the agency rules promulgated thereunder, and no evidence was

submitted in the form of committee minutes, notes, legislative journals or by

other means to clearly establish a legislative intent either coinciding or

differing from Mr. Kissinger's perception.

7. Mr. Kissinger relies for the DOT "interpretation" upon the definition

of "nonconforming" signs given in Section 479.01(12), Florida Statutes. He does

not rely for DOT's interpretation on the exceptions listed in Section 479.16,

Florida Statutes. It is his view that notwithstanding Rule 14-10.006(1)(b)(7),

Florida Administrative Code, those permits issued before July 1, 1984, are valid

with or without a sign being erected or tags maintained/displayed. Even though

DOT's current permit application form requires applicants such as Petitioner to

state, to the best of their knowledge, the location of the permitted sign

nearest to the site for which they are applying, there is no way any post-1984

applicant can find out about preexisting unutilized permits on its own without

getting that information from DOT. Only after the application is submitted,

does DOT run its own check and deny the new permit application if a permit for a

site within the distance given in Section 479.09 exists regardless of whether

there is a sign erected or a tag displayed at the earlier permit's site.

8. DOT applies its interpretation statewide and asserts that all the

agency is doing is to not apply the posting and erection requirements of Section

479.07(5)(a) retroactively to pre-1984 permits, upon recognized standards of

prospective statutory construction, and that the agency has not established any

policy or rule thereby.

9. The statute in question came about as a substantial rewording of

Section 479.07, Florida Statutes, by way of amendments contained in Chapter 84-

227, Laws of Florida, which provided as follows:

479.07 Sign permit required.--

(1) Except as provided in s. 479.16, no

person shall erect, operate, use, maintain,

or cause to be erected, operated, used, or

maintained, any sign on the state highway

system outside incorporated areas or any

portion of the interstate or federal-aid

primary highway systems without first

obtaining a permit there for from the

department and paying the annual fee as

provided herein.

(2) No person shall apply for a permit

unless he has first obtained the written

permission of the owner or other person in

lawful possession or control of the site

designated as the location of the sign in

the permit application.

(3)(a) Application for a sign permit shall

be made on a form prescribed by the

department and a separate application shall

be submitted for each permit requested. A

permit shall be required for each sign

facing. As part of the application, the

applicant or his authorized representative

shall certify in a notarized signed

statement that all information provided

therein is true and correct and that,

pursuant to subsection (2), he has obtained

the written permission of the owner or

other person in lawful possession of the

site designated as the location of the sign

in the permit application. Every permit

application shall be accompanied by the

appropriate permit fee; a signed statement

by the owner or other person in lawful

control of the site on which the sign is

located or will be erected, authorizing

placement of the sign on that site; and,

where local government regulation of signs

exists, a statement from the appropriate

local government official indicating that

the sign complies with all local government

requirements and that the agency or unit of

local government will issue a permit to

that applicant upon approval of the state

permit application by the department.

(b) The annual permit fee for each sign

facing shall be $25 for 20 lineal feet or

less, and $35 for over 20 lineal feet.

(c) No fee may be prorated for a period

less than the remainder of the permit year

to accommodate short-term publicity

features; however, all first-year fees may

be prorated by payment of an amount equal

to one-fourth of the annual fee for each

remaining whole quarter or partial quarter

of the permit year ending on January 15.

Permit applications shall be acted on by

the department within 30 days after receipt

of the application by the department.

Applications received after September 30

shall include fees for the last quarter of

the current year and fees for the

succeeding year.

(4)(a) For every permit issued, the

department shall furnish to the applicant a

serially numbered permanent metal tag. The

permittee is responsible for maintaining a

valid permit tag on each permitted sign

facing at all times. The tag shall be

securely attached to the sign facing or, if

there is no facing, on the pole nearest the

highway, and shall be attached in such

manner as to be plainly visible from the

main-traveled way. The permit shall become

void unless the permit tag is properly and

permanently displayed at the permitted site

within 30 days after the date of permit

issuance. If the permittee fails to erect

a completed sign on the permitted site

within 270 days after the date on which the

permit was issued, the permit shall be

void, and the department may not issue a

new permit to that permittee for the same

location for 270 days after the date on

which the permit became void.

(b) A permit is valid only for the

location specified thereon. Valid permits

may be transferred from one sign owner to

another upon written acknowledgment from

the current permittee and submittal of a

transfers fee of $5 for each permit to be

transferred. However, the maximum transfer

fee is $100 for any multiple transfer

between two outdoor advertisers in a single

transaction.

(c) If a permit tag is lost, stolen, or

destroyed, the permittee to whom the tag

was issued shall apply to the department

for a replacement tag Upon receipt of the

application accompanied by a service fee of

$3, the department shall issue a

replacement permit tag.

(d) A permittee shall at all times

maintain the permission of the owner or

other person in lawful control of the sign

site to have and maintain a sign at such

site.

(5)(a) All licenses and permits expire

annually on January 15, and all license and

permit renewal fees are required to be

submitted to the department by no later

than January 15. On or before November 1

of each year, the department shall send to

each permittee a notice of fees due for all

permits of the permittee which were issued

prior to September 30. Such notice shall

list the permits and the permit fees due

for each sign facing. The permittee shall,

no later than January 1 of each year,

advise the department of any additions,

deletions, or errors contained in the

notice. Permit tags not renewed shall be

returned to the department for cancellation

by January 15. Permit tags not renewed or

returned to the department shall be

accounted for by the permittee in writing,

which writing shall be submitted with the

renewal fee payment.

(b) If the permittee has not submitted his

fee payments by January 15, the department

shall, no later than February 1, send a

violation notice or the permittee requiring

fee payment within 30 days after the date

of the notice and payment of a delinquency

fee equal to 10 percent of the original

amount due, or, in the alternative to these

payments, the filing of a request for an

administrative hearing to show cause why

his signs should not be subject to

immediate removal due to expiration of his

license or permit. If the permittee

submits payment as required by the

violation notice, his license or permit

shall be automatically reinstated and such

reinstatement shall be retroactive to

January 15th. If the permittee does net

respond to the violation notice within the

30-day period, the department shall remove

the sign without further notice and without

incurring any liability as a result of such

removal.

(6)(a) Any sign not granted a permit by

the effective date of this act shall not be

granted a permit 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 minimum spacing provided herein shall

not preclude the permitting of V-type,

back-to-back, side-to-side, stacked or

double faced signs at the permitted sign

site.

(b) No sign shall be granted a permit

pursuant to this chapter to locate on any

portion of the interstate or federal-aid

primary highway systems that:

1. Exceeds 50 feet in sign structure

height above the crown of the main-traveled

way, if outside an incorporate area; or

2. Exceeds 65 feet in sign structure

height above the crown of the main-traveled

way, if inside an incorporated area; or

3. Exceeds 950 square feet of sign of facing

including all embellishments.

(c) Nothing in this subsection shall be

construed so as to cause a sign which is

conforming on the effective date of this

act to become nonconforming.

(7) Commercial or industrial zoning which

is not comprehensively enacted or which is

enacted primarily to permit signs shall not

be recognized as commercial or industrial

zoning for purposes of this provision and

permits shall not be issued for signs in

such areas. The department shall adopt

rules within 130 days after this act takes

effect which shall provide criteria to

determine whether such zoning is

comprehensively enacted or enacted

primarily to permit signs.

10. A Reviser's Bill renumbered and made scrivener's changes in the

amendatory language so that the "interpreted" portions of Section 479.07 were

codified as follows:

(5)(a) For each permit issued, the

department shall furnish to the applicant a

serially numbered permanent metal permit

tag. The, permittee is responsible for

maintaining a valid permit tag on each

permitted sign facing at all times. The

tag shall be securely attached to the sign

facing or, if there is no facing, on the

pole nearest the highway; and it shall be

attached in such a manner as to be plainly

visible from the main-traveled way. The

permit will become void unless the permit

tag is properly and permanently displayed

at the permitted site within 30 days after

the date of permit issuance. If the

permittee fails to erect a completed sign

on the permitted site within 270 days after

the date on which the permit was issued,

the permit will be void, and the department

may not issue a new permit to that

permittee for the same location for 270

days after the date on which the permit

became void.

(b) If a permit tag is lost, stolen, or

destroyed, the permittee to whom the tag

was issued must apply to the department for

a replacement tag. Upon receipt of the

application accompanied by a service fee of

$3, the department shall issue a

replacement permit tag.

(6) A permit is valid only for the location

specified in the permit. Valid permits may

be transferred from one sign owner to another

upon written acknowledgment from the

current permittee and submittal of a transfer

fee of $5 for each permit to be transferred.

However, the maximum transfer fee for any

multiple transfer between two outdoor

advertisers in a single transaction is $100.

(7) A permittee shall at all times maintain

the permission of the owner or other person

in lawful control of the sign site to have

and maintain a sign at such site.

(8)(a) All licenses and permits expire

annually on January 15, and all license and

permit renewal fees are required to be

submitted to the department by no later

than January 15. On or before November 1

of each year, the department shall send to

each permittee a notice of fees due for all

permits which were issued to him prior to

September 30. Such notice shall list the

permits and the permit fees due for each

sign facing. The permittee shall, no later

than January 1 of each year, advise the

department of any additions, deletions, or

errors contained in the notice. Permit

tags which are not renewed shall be

returned to the department for cancellation

by January 15. Permit tags which are not

renewed or returned to the department shall

be accounted for by the permittee in

writing, which writing shall be submitted

with the renewal fee payment.

(b) If a permittee has not submitted his

fee payment by January 15, the department

shall, no later than February 1, send a

notice of violation to the permittee,

requiring the payment of the permit fee

within 30 days after the date of the notice

and payment of a delinquency fee equal to

10 percent of the original amount due or,

in the alternative to these payments,

requiring the filing of a request for an

administrative hearing to show cause why

his sign should not be subject to immediate

removal due to expiration of his license or

permit. If the permittee submits payment

as required by the violation notice, his

license or permit will be automatically

reinstated and such reinstatement will be

retroactive to January 15th. If the

permittee does not respond to the notice of

violation within the 30-day period, the

department shall remove the sign without

further notice and without incurring any

liability as a result of such removal.

(9)(a) A permit shall 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 minimum spacing provided in this

paragraph does not preclude the permitting

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

stacked, or double-faced signs at the

permitted sign site.

(b) A permit shall not be granted for a

sign pursuant to this chapter to locate

such sign on any portion of the interstate

or federal-aid primary highway system,

which sign:

1. Exceeds 50 feet in sign structure

height above the crown of the main-traveled

way, if outside an incorporated area;

2. Exceeds 65 feet in sign structure

height above the crown of the main-traveled

way, if inside an incorporated area; or

3. Exceeds 950 square feet of sign facing

including all embellishments.

(c) Nothing in this subsection shall be

construed so as to cause a sign which is

conforming on the effective date of this

act to become nonconforming.

11. Section 479.01(12) as amended provides:

'Nonconforming sign' means a sign which was

lawfully erected but which does not comply

with the land use, setback, size, spacing,

and lighting provisions; of state or local

law, rule, regulation, or ordinance passed

at a later date or a sign which was;

lawfully erected but which later fails to

comply with state or local law, rule,

regulation, or ordinance due to changed

conditions. [Emphasis supplied.]

12. The effective date(s) of Section 479.07 is significant as provided in

Section 27 of Law 84-227:

This act shall take effect October 1, 1984,

except that the amendments to Section

479.07 F.S. shall take effect July 1, 1984;

however, any permit or license which is

valid and applicable as of June 30, 1984,

shall remain valid and applicable until

January 15, 1985, unless the license or

permit earlier expires or is revoked.

[Emphasis Supplied.]

13. Likewise, the exceptions set out in Section 479.16, Florida statutes,

as amended by Chapter 84-227, must be considered. They are numerous, but do not

specifically enumerate "Pre-July 1, 1984 permits," in that language.

14. The new statue defines "erect" at Section 479.01(4) and "sign" at

Section 479.01(14) as follows:

(4) "Erect" means to construct, build,

raise, assemble, place, affix, attach,

create, paint, draw, or in any other way

bring into being or establish; but it does

not include any of the foregoing activities

when performed as an incident to the change

to advertising message or customary

maintenance or repair of a sign.

(14) "Sign" means any combination of

structure and message in the form of an

outdoor sign, display, device, figure,

painting, drawing, message, placard,

poster, billboard, advertising structure,

advertisement, logo, symbol, or other form,

whether placed individually or on a V-type,

back-to-back, side-to-side, stacked, or

double-faced display, designed, intended,

or used to advertise or inform, any part of

the advertising message or informative

contents of which is visible from any place

on the main-traveled way. The term does

not include an official traffic control

sign, official marker, or specific

information panel erected, caused to be

erected, or approved by the department.

Both of these foregoing subsections are substantially the same as their

predecessors in the pre-1984 statute.

15. There appears to be no dispute that DOT has lawfully promulgated the

following rules in order to facilitate its administration of Chapter 479,

Florida Statutes, as amended 1984:

Rule 14-10.004(2)(d)--The application shall

be notarized and shall contain . . . The

sign's distance from the right of way, the

nearest permitted sign on the same side of

the highway, and the nearest intersection

on the same side of the highway.

[Emphasis supplied.]

Rule 14-10.004(6)--Permits shall be renewed

in accordance with Section 479.07(5).

[Emphasis supplied.]

Rule 14-10.004(9)--A sign granted a permit

shall be erected and thereafter maintained

in accordance with Section 479.07, F.S. and

this Rule Chapter. [Emphasis Supplied.

Rule 14-10.004(10)--The permanent metal tag

issued by the Department shall be displayed

and maintained in accordance with Section

479.07(5)(a) F.S.

Rule 14-10.006(1)(b)(7)--The following

shall apply to signs for which the initial

valid permit application was submitted

after July 1, 1984: Official signs, and

signs exempt under Section 479.16 and

structures that are not lawfully maintained

shall not be counted nor shall measurements

be made from them for purposes of

determining compliance with spacing

requirements. [Emphasis supplied.]

Rule 14-10.007(1) provides in pertinent part:

. . . A sign which was conforming on June

30, 1984, but which does not comply with

the size, spacing, and height requirements

of Section 479.07(9) F.S. shall not be

considered a nonconforming sign.

[Emphasis supplied.]

Rule 14-10.007(2)(e) provides in pertinent part:

(2) The following shall apply to nonconforming

signs:

(e) A sign face which remains void of

advertising matter for 12 months or longer

shall be deemed an abandoned or discontinued

sign and shall lose its nonconforming status.

[Emphasis supplied.]

None of these duly promulgated rules has been challenged in this proceeding.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to section 120.56, Florida

Statutes.

17. Section 120.52(16), Florida Statutes, defines a "rule" to mean:

. . . each agency statement of general

applicability that implements, interprets,

or prescribes the organization, procedure,

or practice requirements of an agency and

includes any form which imposes any

requirement or solicits any information not

specifically required by statute or by an

existing rule. The term also and includes

the amendment or repeal of a rule . . . .

18. In the instant situation, Section 479.07, Florida Statutes, was

amended by Chapter 84-227, Laws of Florida, to require that parties obtaining

outdoor advertising permits post their permit tag within thirty (30) days and

erect their signs within two hundred seventy (270) days or their permits would

become void. The amendment became effective July 1, 1984, and did not specify

that the new condition was to be applied to permits issued prior to July 1,

1984; however, the amendments likewise did not specifically exempt permits

issued before the effective date, either. See, Section 479.16, Florida

Statutes.

19. The effective date of the amendments only provide that:

. . . any permit or license which is valid

and applicable as of June 30, 1984, shall

remain valid and applicable until January

15, 1985, unless the license or permit

earlier expires or is revoked.

20. Section 479.01(12) only makes exceptions for nonconforming "signs

lawfully erected."

21. Section 479.07(9)(c) only provides that nothing in that subsection,

that is, in subsection (9), pertaining to spacing requirements for permitting of

new signs after July 1, 1984, may be construed to cause a sign which is

conforming on the effective date of the Act to become nonconforming. See the

definition or "sign" contained in Section 479.01(14) Florida statutes, and of

"erect" contained in Section 479.01(4), Florida Statutes.

22. DOT interprets the amendment to Section 479.07, now codified as

section 479.07(5)(a), requiring permit display and sign erection within a

specified time period, to be applicable only to permits initially issued after

the effective date of July 1, 1984. Therefore, the agency has not enforced that

subsection against preexisting permits or against renewals after January 15,

1985, of pre-existing permits whether or not a sign has ever been erected on the

permitted site. However, the agency has applied and enforced against

preexisting permits all other portions of the amendments, including but not

limited to the mandatory recurring uniform annual January 15 renewal date and

increased renewal fee with regard to preexisting permits. The agency has taken

this approach on the grounds that expirations of permits existed under the old

law and only the staggered dates of expiration were made uniform by statutory

amendment and that fees for permit renewals existed under the old law and only

the amounts were increased by statutory amendment but that because tag and

erection time limits were not provided for under the pre-1984 law, the

amendments creating Section 479.07(5)(a) should not be applied to each annual

renewal application after January 15, 1985.

23. If the foregoing were all that the agency "interpretation" consisted

of, it might constitute only an agency's prospective application of a statute,

the validity of which statutory interpretation would be subject to be re-

litigated in every Section 120.57(1) proceeding. That is not, however, the

case. DOT's "interpretation" does considerably more than apply Section

479.07(5)()a) prospectively. By implication, it interprets the term, "permitted

signs" as used in Section 479.07(9). By consistently applying to every new

application the spacing requirements of new Section 479.07(9) so as to take the

measurements from the registered site of a permit issued before July 1, 1984,

rather than from a "permitted sign" as clearly provided in that statutory

subsection, DOT has placed an interpretation upon the statute that is not

readily apparent from its literal reading. The DOT interpretation/position, is

taught its right of way personnel in training sessions and is applied statewide.

That position asserts that a permit preexisting 1984 need not comply with

Section 479.07(5)(a) and also holds that a permit preexisting 1984 also

constitute's a "permitted sign" as described in Section 479.09. This position

creates rights which have the direct and consistent effect of law. Moreover, by

its duly promulgated rules , DOT has camouflaged what its unpromulgated

interpretation/policy is.

24. All the duly promulgated DOT rule reviewed apply to signs or

structures (not permits) except for Section 14-10.004(6), Florida Administrative

Code, which refers to permits. DOT argues that this usage is because the duly

promulgated rules were only intended to be applied to permits issued after July

1, 1984, for which it agrees signs and tags are clearly mandated by the statute.

If further asserts this is because Section 14-10.004(6), Florida Administrative

Code, which provides "permits shall be issued in accordance with Section

479.07(5), Florida Statutes" [emphasis supplied], refers to the annual renewal

provisions encompassing payment of fees that were numbed as paragraph 5 in

Chapter 84-227 and renumbered as paragraph 8 by the Division of Statutory

Revision. However, these arguments cannot be readily verified from the Rule

itself. Rule 14-10.004(10) also provides for display and maintenance of tags in

accord with Section 479.07(5), Florida Statutes. Both rules encompass

Subsection (5) and nowhere in the duly promulgated rules is there any

distinction between pre and post-Ju1y 1, 1984 permits. DOT's interpretation

therefore also attempts to modify duly promulgated rules.

25. The agency "interpretation" governs all post-1984 permit applications

indefinitely into the future.

26. For all the foregoing reasons, the "interpretation" constitutes a

"rule" upon the clear reading of Section 120.52(16), Florida Statutes. Whether

an agency's statement is a rule which must be adopted in accordance with the

statutory procedure turns on the effect of the statement and not on the agency's

characterization by some application other than "rule." See, Department of

Transportation v. Blackhawk Quarry Company of Florida, 528 So.2d 447 (Fla. 3rd

DCA 1988), Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA

1984), Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43

(Fla. 1st DCA 1984), Department of Revenue v. U. S. Sugar Corporation, 388 So.2d

596 (Fla. 1st DCA 1980).

27. The failure to properly promulgate the "interpretation" as a rule

renders it invalid as a rule, Department of Corrections v. Sumner supra,

Department of Administration v. Harvey, 356 So.2d (Fla. 1st DCA 1977).

28. It is next necessary to address whether or not this interpretation is

invalid on its face as inconsistent with the statute it seeks to interpret and

apply or whether it is subject to application of that policy on a case by case

basis. The evolution of the law is persuasive that due to the broad discretion

inherent in agencies to interpret statutes, the interpretation/rule is subject

to being proved up in each section 120.57(1) proceeding, which is precisely the

result as if the "rule" had been found to be mcrely a statutory interpretation.

29. Agencies are now given the choice of properly promulgating policies as

rules and applying them with the full force and effect of law or of fully

explicating those policies and exposing them to challenge every time they are

applied in an adjudicatory procedure. Presumably, this is what will transpire

in the pending Section 120.57(1) proceedings. McDonald v. Department of Banking

and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), Amos v. Department of Health and

Rehabilitative Services, 444 So.2d (Fla. 1st DCA 1983), Gulf Coast Home Health

Services of Florida, Inc. v. State of Florida, Department of Health and

Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1937). In Amos, p.47,

supra, the agency's policy was invalidated, not solely because it had not been

promulgated as a rule, but because the agency also failed to affirmatively show

the reasonableness and factual accuracy of the policy.

Based on the foregoing, it is hereby ORDERED:

1. Petitioner has standing to bring this action.

2. DOT's policy that sign permits which were issued prior to July 1, 1984,

shall not be subject to Section 479.07(5)(a), Florida Statutes, enforcement and

shall be treated as if they constituted erected and maintained signs for

purposes of Section 479.07(9), Florida Statutes, is invalid as a rule for

failure to promulgate pursuant to Section 120.54, Florida Statutes.

DONE and ORDERED this 29th day of December 1988, Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

FILED with the Clerk of the

Division of Administrative Hearings

this 29th day of December 1988.

APPENDIX TO FINAL ORDER

The following constitute specific rulings upon the parties' respective

proposed findings of fact pursuant to Section 120.59(2), Florida Statutes.

Neither of the parties numbered paragraphs or sentences of their respective

proposals. Neither party divided its proposal into findings of fact and

conclusions of law. Each proposal contained mixed legal argument and citation

of authority absent any factual proposal.

Petitioner's Memorandum:

All factual proposals contained on unnumbered pages 1-9 are accepted in

substance within the findings of fact. The remaining material is rejected as

mere legal argument and citation of authority. Those relevant and material

arguments are discussed within the conclusions of law.

Respondent's Proposed Final Order:

The facts alleged on page 1 are accepted in substance. The remainder of

page 1 and all of page 2-3 and paragraph 1 or page 4 are covered in the

introductory material to the final order or is rejected as conclusions of law,

mere legal argument, citation of authority, or cumulative to the facts as found.

Paragraph 2 of page 4 constitutes mixed legal argument and factual proposals.

It is rejected as both as set out in the conclusions of law. The last paragraph

of page 4 and pages 5, 6 and 7 are rejected as conclusions of law, mere legal

argument, citation of authority, or cumulative to the facts as found. The

relevant and material

arguments are discussed in the Conclusions et law.

COPIES FURNISHED:

Kaye N. Henderson, Secretary

Department of Transportation

Haydon Burns Bu1ding

E05 Suwannee Street

Tallahssee, Florida 32301

J. Arby Van Slyke, Esquire

210 South Tarragona Street, Suite A

post Office Box 13244

Pensacola, Florida 32591

Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building, M.S.-58

605 Suwannee Street

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol - 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300