HomeMy WebLinkAboutZB Appeal Letter & Supporting DocumentsTEV • CARDENAS LLP
A T T O R N E Y S A T L A W
MIAMI • TALLARASSEE - WASHINGTON DC
Wkmi.: °s 1)iw--,c.r1.I?I: 305.536,9216
December 19, 2008
Ms. Teresita Fernandez
Clerk of the Hearing Boards
444 S.W. 2nd Avenue
Miami, Florida 33130-1910
FOUR SEASONS TOWER
15 Tx FLOOR
1441 BRIOKELLAVENUE
MIAMI, FLORIDA 33131--3407
T 305.536.11I2
F 305.536.1116
WW ILTEWLAW.COM
Re: NOTICE OF APPEAL - Building Permit Application for
Construction of Billboard at 1700 SW 3'a Ave.
Dear Ms. Fernandez:
Please consider this as a notice of appeal' of the denial of a building permit for a
sign located at 1700 SW 3`1 Ave. ("the Sevennine Sign") by the Zoning Administrator,
Lourdes Slazyk. On November 6, 2008, Outlook Media of South Florida LLC
("Outlook") submitted an application for a building permit for the Sevelmine Sign, On
November 14, 2008, Outlook filed a petition for writ of mandamus ("the Petition"),
requesting an order directing the City to process and issue a building permit for the
Sevennine Sign (attached as Exhibit A). It is a ministerial act to issue the building
permit, because Outlook has met all of the requirements for a permit for an outdoor
advertising sign, as asserted in the Petition.
The City asserts several bases for the denial of the application for the Sevennine
Sign in the notice of denial dated December 8, 2008 (attached as Exhibit B). However,
the proper venue for these arguments is in response to the Petition currently pending in
the 11th Circuit. Without waiving any rights, remedies, or arguments to be asserted in the
pending action in the 11tH Circuit, Outlook responds as follows:
Waiver 'ig DEC 19 PH 2-a 013
The City has waived any right to assert that the joinder of CBS Outdoor Inc. is
required in the building permit action, or that a partial assignment of any rights requires
the approval of the City Commission. In fact, the City states in the December 8, 2008
letter that CBS Outdoor authorized Outlook in writing to file applications on CBS' behalf
I A petition for a writ of mandamus was filed on November 14, 2008, to require the City of Miami to
process the application and issue a building permit for the Sevennine Sign. Outlook hereby files this appeal
of the denial issued by the zoning administrator, without waiving any arguments, rights, or remedies
asserted in the petition for writ of mandamus.
Ms. Teresita Fernandez
December 19, 2008
Page 2 of 3
The City signed the local government permission section of FDOT Form 575-050.04 on
June 26, 2008, certifying that the outdoor advertising sign is "in compliance with all duly
adopted local ordinances and has been or will be issued the necessary permits."
The City cannot now assert that the sign is not in compliance with the ordinances
and agreements pertaining to outdoor advertising signs- the City has waived that
argument by affirmatively stating that the outdoor advertising sign is "in compliance with
all duly adopted local ordinances and has been or will be issued the necessary permits."
Compliance with all requirements
The Settlement Agreement with CBS Outdoor provides that CBS shall receive
credit for all signs listed in Exhibit C to the agreement. Therefore, signs have already
been removed to provide credit for the issuance of a permit for the Sevennine Sign. The
permit fee is due at the time of issuance, and Outlook is ready and willing to bring a
check for the permit fee immediately upon issuance of the permit for the Sevennine Sign.
Pending FDOT permit
There is no requirement in the City of Miami code, or the CBS settlement
agreement, that proof of an FDOT pen -nit is required as a prerequisite to the issuance of a
building permit for an outdoor advertising sign. It is acknowledged that both a permit
from the City and FDOT is required for the construction of an outdoor advertising sign..
However, the issuance of the FDOT permit is not a prerequisite to the issuance of a
building permit. In fact, FDOT accepts a building permit for an outdoor advertising sign
as evidence of local government permission,
Thus, neither is a prerequisite to the other. On December 17, 2008,
Administrative Law Judgment Powell issued a Recommended Order denying an FDOT
permit for a proposed outdoor advertising sign located at 299 SW 17t" Rd (attached as
Exhibit Q. This allows the processing of the FDOT application for the Sevennine Sign,
which has been complete and pending approval contingent upon the resolution of the
administrative appeal for the sign proposed at 299 SW 17" Rd. (See Letter from FDOT
dated July 3, 2008, attached as Exhibit D).
Therefore, Outlook has clearly met all prerequisites for the issuance of a building
permit for the Sevennine Sign, as asserted in the Petition. In accordance with Section
1800 of the City Zoning Code, any aggrieved party may appeal to the zoning board.
Outlook is undeniably an aggrieved party of this denial by the zoning administrator, and
has standing to appeal this decision.
10 DEC19 tem 2:05
TEw CARDENAS LLP
Four Seasons Tower, 15th Floor, 1441 Bricicell Avenue, Miami, Florida 33131-3407 • 305-536-1112
Ms. Teresita Fernandez
December 19, 2008
Page 3 of 3
Therefore, pursuant to Section 1800 et seq. of the Zoning Code, Outlook has
submitted this notice of appeal, to preserve any rights, arguments, or remedies related to
the denial of the application for a building permit for the Sevennine Sign by the zoning
administrator. However, Outlook looks forward to making these arguments in the
pending action in the 11 t" Circuit.
Sincerely,
60at—��
Amanda L. Quirke
cc: Santiago D. Echemendia
W DEC. 19 Pry 2:05
TFNv CARDENAS LLP
Four Seasons Tower, 15th Flom, 1441 Brickell Avenue, Miami, Florida 33131-3407 • 305-536-1112
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT, IN
AND FOR MIAMI -DARE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.
OUTLOOK MEDIA OF SOUTH FLORIDA LLC.,
Petitioner,
v.
CITY OF MIAMI.
Respondent
VERIFIED PETITION FOR WRIT OF MANDAMUS
Petitioner, Outlook Media of South Florida, LLC ("Outlook"), hereby files this Petitioner for a
Writ of Mandamus directing the City of Miami ("City") to process and issue building permit
applications for outdoor advertising signs Iocated at 1.700 SW 3"d Avenue (the "Sevennino Sign")
and 1330 NW 2nd Court (the "Mary Mays Sign."), and states in. support;
PARTIES AND JURISDICTION
L Petitioner, Outlook Media of South Florida, LLC ("Outlook"), is a Florida Limited
Liability Company duly organized under the lanes of the State of Florida.
2. Respondent, City of Miami (the "City"), is now, W -id at all tinges mentioned in this
petition has beon, a municipal corporation duly organized and existing under the law's of
the State of Florida, located in Miami -bade County, Florida.
3. This is a petition for the issuance of a writ of mandamus, and thus jurisdiction in this
Court is proper,
4. This is an action involving building pen -nit applications filed for propeily located in the
515708.1
City of Miami, and thus venue is proper in this court.
TEw CARDCNAs LLP
Four seasons Tower, 15th Floor, 1441 13riahall Avenue, Miami, Florida 33131-3407 - 305-536-1112
GROUNDS FOR ISSUANCE OF WRIT
5. On November 5, 2008, Lee Beekman, agent for Outlook, delivered an application to the
City building department for a building permit for the Mary Mays Sign, A copy of the
building permit application for the Mary Mays Sign is attached as Exhibit A,
6. On November 10, 2008, Lee Bookman, agent .for Outlook, delivered an application to the
City building department for a building permit for the Sevenriine Sign. A copy of the
building permit application for the Sevennine Sign is attached as Exhibit B.
7. Upon information and belief, the applications for the Mary Mays Sign and the Sevennine
Sign were sent to the City of Miami Planning and Zoning Department, acid are not being
processed as of the date of this petition.
Requirements for An Outdoor Advertising Sign
8. The City of Miami has adopted a Sign Code, including Article 10 and Section 926 of the
City of Miami Zoning Cade (the "City Code"), a true and correct copy of which is
attached as Exhibit C.
9. All applications for sign Permits, in accordance with Section 10.1.4.1 of the City Code,
shall be made on foixns provided by the City, and include the following information:
a. Name, address and telephone nun-iber of the applicant;
b. Name, address and telephone number of the sign owner;
c, Location by street number, and legal description (tract, block, lot) of the building,
515708.1
structure, or lot to which or upon the sigh is to be installed or affixed;
d. A drawing to soale showing the design of the sign, including the dimensions, sign
size, method of attachment, source of illumination, and showing the relationship
to any building or structure to which it is, or is proposed to be, installed or placed,
or to which it relates;
e. A. fully dimensional plot plan, drawn to scale, indicating the location of the sign
relative to property line, right-of-way, streets, sidewalks, and other buildings or
structures on the premises;
f Number, size and location of all existing signs upon the same building, lot or
promises, if applicable; and
TEw CARDENAs LLP
Four Seasons Tower, 15th rIoor, 1441 Arickell Avenue, Miami, Florida 33131-3407 - 305-536-1112
10. to accordance with Section 10.1.4.3, included in Exhibit C, the City shall erasure
compliance with the South Florida Building Code, and compliance with the following
criteria:
a. The size and area of the signs comply with the specifications set forth for the type
of sign and the zoning district in which the sign is to be located; and
b. The signs comply with location standards on the subject property or structure as
specified herein.
Outlook has Satisfied the Criteria for Issuance of the Mary Mays Sign Permit
1.1. Outlook has satisfied the requirements of Section 10.1.4.1 for the Mary Mays Sign,
outlined in Paragraph 8 of this Petition, as follows:
a. Items listed in Paxagraph 8 (a) -(c) and (f) are included on Page 1 of Exhibit A.
b, The design drawing referenced in Paragraph 8(d) is included on Page 9 of Exhibit
A.
c. The plot plan referenced in Paragraph 8(e) is i.ncludcd on Page 8 of Exhibit A
12. The City has confirmed that the application for the Mary Mays Sign meets the criteria set
forth in Section 10. 1.4.3, as evidenced by the "Local Government Pennission" section of
the FDOT Form 575070-04, included as Page 4 of .Exhibit A. On rune 12, 2008,
Lourdes Slazyk, City Zoning Administrator, signed the form confirming that the Mary
Mays Sign "is in compliance with all duly adopted local ordinances and has been or
will be issued the necessary permits."
Outlook has Satisfied the Criteria for Issuance of the Sevennine Sign Perinit
11 Outlook has satisfied the requirements of Section 10.1.4.1 for the Sevennine Sign,
outlined .in Paragraph 8, .as follows.
a. Items listed in Paragraph 8 (a),(c) and (f) are included on Page 1 of Exhibit B.
b. The design drawing referenced in Paragraph 8(d) is included on Page 7 of Exhibit
B,
c. The plot plan referenced in Paragraph 8(e) is included on Page 6 of Exhibit B.
14. The City has confirmed that the application for the Sevennine Sign meets the crite>ia set
forth in Section 10.3.4.3, as evidenced by the "Local Goverlurnent Permission" section of
the FDOT Form 575-070-04, included as Page 3 of Exhibit B, On June 26, 2008,
Lourdes Slazyk, City Zoning Administrator, signed the fonn confirming that the Mary
sls7aa,y
TEw CARDENAS LLP
Pane Seasons Tower, 15th Floor, 1441 Brickell Avc1lue, Miami, Florida 33131-3407 . 305.536-1112
Mays Sign "is in compliance with all duly adopted local ordinances and has been or
will be issued the necessary permits."
15. The City has a legal duty to process and issue building permits for outdoor advertising
signs, in accordance with Section 10.1.6 of the City Code, which states as follows:
A sign permit may be approved by the planning and zoning department if the
criteria set forth in section 10,1.4.3 herein has been met, all other necessary
approvals, if any, have been obtained and all required fees have been paid.
Upon compliance with all of the requirements set forth herein, the planning
and zoning department shall review the proposed sign pennit application and
render a decision no later than tern (10) days from. such compliance,, unless a
special permit is required; in the case of a special permit, the time limitations
for such special pen -nit shall apply.
16. Since Outlook has met all the criteria for issuance of a building permit for the Mary Mays
Sign and the Sevennine Sign, there is no roon7 for the exercise of discretion, and the
issuance of the building permits for the Mary Mays Sign and the Sevennine Sign aro
ministerial acts. RHS Corp. v. City of Boynton ,Beach, 736 So. 2d 1211 (Fla. 4"' DCA
1990.
Outlook is Entitled to u Writ of Mandamus Directing the
Issuance of Permits for the Mary Mays Sign and time Sevennine Sign
17. It is well settled that a writ of mandamus may be issued directing the City to issue the
building permits where the legal requirements aro inet and no element of discretion
remains. Charlotte County v. Vetter, 863 So.2d 465, (Fla. 2d DCA 2004),
18. Pursumit to Section 10.1.6 of the City Code, the City has a clear legal duty to review
applications and issue permits for outdoor advertising signs which mcat the requirements
of Article 10 and Section 926 of the City Code,
19. Outlook has a clear legal right to the issuance of the pennits for the Maty Mays Sign and
the Sevennine Sign, because the City has confirmed the aforementioned signs are "is in
compliance with all duly adopted local ordinances and has been or will be issued the
necessary permits." Soo Exhibit A, page 4; Exhibit B, page 3.
20. Outlook has no other legal remedy, because the City has refused to process the permit
applications for the Mary Mays Sign and the Sevennine Sign, Therefore, Outlook has no
515708,1
T&W CARMNAS LLP
Fmir Seasons Tower, 154, Flour, 1441 Brickell Avenue, Miami, Florida 33131.3407 • 305-536-111?
decision to appeal or any other legal remedy to direct the City to process and issue the
permits for the Mary Mays Sign mad the Severmine Sign..
WHEREFORE, Outlook respectfully requests that this Court issue a writ of mandamus directing
the City of Miami to process and issue building permits for the Seveimine Sigh and the Mary
Mays Sign, and such other relief as this Court deems just and proper,
515708.1
TEW CARDI:NAs TLP
Four Seasons Tower, 15th Floor, 1441 13CIcicell Avoaue, Migini, Floildn 33131.3407 • 305-536-1 f 12
VERIFICATION
STATE OF FLORIDA )
) SS.
COUNTY OF MIAMI-DA.DE )
BEFORE ME, the undersigned authority, personally appeared 4,5-,5 )?
Ec knnpatil ,
who, after being duly sworn., deposed and stated as follows:
1. He is the agont of Outlook Media of South Florida, LLC.
2. He has read the above and foregoing allegations set forth in Paragraphs 5-7, 11
and 13, and confirms that the facts recited therein are true and correct,
Leo Beelanan
The, foregoing instriunent was acluzowledged before lap, this 13�day of Nd �
2008, by --tl 2 kM A , who is personally known to me or has
produced EfT;?5Z -Q as identification.
Notary Pu i
515708.1
Type, Print or Stamp Name
My CD1`nMissian Expires;
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Explr%: FEB. 13, 2010
www.AARGNNOTARYxom
TAW C"ARDFNAS LLP
Fain, Seuso»s Tower, 15111 Floor, 1441 Srickell Avenue, Miami, Flodda 33131-3407 • 30$.536-1112
515708.1
Respectfully submitted,
Tow Cardenas LLP
Attorneys forPlaintiff
Pour Seasons B 15t1, Floor
1441 Brickell Avenue
Mismi, Florida 33131-4331
Telephoiie No,; (305) 536-1112
Facsimile No.; (305) 536-1116
A ianda L, Quirko
Florida Bar No, 0026838
TEw CARDENAS LLP
Cour Sommm Tower, 15th Floor, 1441 Brlciceli Avenue, Mimul, Florida 33 J31-3407 • 305-536-1112
12/12/2008 15:37 6775489120
Senennine LLC
331 SW 196'Road.
Mi ami, FL 33129
(��c#fir �ffliami�
December 8, 2008
Outlook Media of South Florida, LLC
2295 S. Hiawassee Rd., #203
Orlando, FL 32835
PAGE 02
PEDRO G, HEPNANWZ, P.E.
City ManageT
CERTVIED -MAIL
RETUKK R�SCEII'T 5 Ria UESTEII
7006 2760 0001 5320 2759
7006 2760 0001 5320 2742
Re: Building Department Permit A PPlicatian for Construction of Billboard
Job Site: 1.700 SW 3'd Ave., Miami, FL
5evennine Site
Gentlemen:
The Building Departmemt is in receipt of a Permit Application, received
November 6, 2008, for the construction of a billboard at the above -referenced location,
This Application is denied for the following reasons:
Section 10.4.5 of the Miami Zoning Ordivance provides as follows:
10.4.5. Outdoor advertising signs; new signs of outdoor
advertising prohibited.
For the purposes of this section, "Outdoor advertising
signs" are signs used in the conduct of the outdoor
advertising business; an outdoor advertising
business, for the purpose of this section, is defined
as the business of receiving or paying money for
displaying signs where the sign copy does not
pertain to the use of the property, a product sold, or
the- sale or lease of the property on which the sign is
displayed and whieb does not identify the place of
business as purveyor of the merchandise or services
advertised on the sign.
Excent as otherwise nirovided in Articles 4 and 10 and/or
the City Code, or, pursuant to this subsection, no
new freestanding "Outdoor advertiszna__si ns,"as
defined above shall be allowed.
DEPARTMENT OF ZONING;
444 S.W. 2nd Avenue, 4'"Floor, Miami, FL 331.30 (3 05) 41 6-1 499 Telecupicr (305) 416-1490
Mailing Addre55: P.D. E ox 33Q700 Miami, Klvrida 33233-0708
12/12/2608 15:37 8775489120
Sevennine, LLC
Outlooks Media of South Florida, LLC
December 8, 2008
Page 2
With respect to existing outdoor advertising signs, Section.
926.15 "Outdoor advertising signs" of Ordinance
11000 adopted in 1990, the Zoning Ordinance of
the City of Miami, and dealing with "Outdoor
j advertising signs," is hereby repealed to the extent it
is inconsistent with any provision contained in this
Article. Nothing, however, in this Article shall
affect those provisions of Section 926.15 requiring
the termination and .removal of freestanding outdoor
advertising signs from the premises on which they
I: were located not later than five (5) years following
I.
the date they became nonconforming as a result of
the passage of Ordinance No. 11000 in. 1990, and
such provisions shall continue to be operative and
given full force and effect. Moreover, nothing in
this Article shall affect any legal proceedings begun
and all legal proceedings that might have been
begun under these provisions of Ordinance No.
�. 11000, as adopted in 1990, and such proceedings
i; shall be given full force and effect.
Notwi.tbstandin an rovision of this Zonin Ordinance to
the contrary, permits for outdoor advertisin& signs
may be issued pursuant to a Seitlemezrt P�eezx�ent
authorized by Resolution passed by the City
Co=ission, in conjunction with the settlement of
related Aiti ation, which Wressly authorizes
issuance of such permits for said outdoor
advertising -signs, and then oal under the terms and
conditions of settleagreements that result in a.
net reduction in the party to the settlement's number
of outdoor advertising signs located in the Cit _of
Miami,
PAGE 03
Consequently, no new "Outdoor advertising signs" are permitted in the City of
Miami (hereinafter the "City") except pursuant to a Settlement Agreement authorized by
the City Commission that results in a net reduction in the number of "Outdoor advertising
signs" located in the City. The City Commission authorized such a settlement agreement
with. CBS Outdoor, Inc. (hereinafter "CBS"), on April 28, 2008.
Under paragraph 4 of the CBS Settlement Agme rnent, CBS is required to comply
with all applicable Florida Department of Transportation (hereinaftex - " FDOT")
regulations for any Outdoor advertising sign constructed under the Settlement
Agreement. F'DOT requires a permit for the construction of Outdoor advertising signs, to
enforce their spacing regulations. FDOT requires the applicable municipality to sign -off
on the permit prior to its issuance,
12/12/2038 15:37 8775489120 PAGE 04
Sevennine, LLC
Outlook Media of South Florida, LLC
December 81 2008
Page 3
On Ma 2, 2008, CBS authorized Outlook Media of South Florida, LLC.
y
€ (hereinafter "Outlook Media'), to
file applications for outdoor advertising permits with
f
FDOT on. CBS' behalf, and notified the City of that authorization. (See letter attached as
Exhibit "A").
On Juin 26, 2008, pursuant to CBS' written authorization of May 2, 2008, the
City executed a FDOT Application for Outdoor Advertising Sign permit for the above -
referenced site, indicating that the Outdoor advertising sign identified in the Application
"[ijs in compliance with all duly adopted local ordinances and has been or will be issued
the necessary permits." (See FDOT Permit Application attached as Exhibit "B"). To
date, the City has not been provided any information that an FDOT permit has been
issued for this site.
Under paragraph 19(f) of the CBS Settlement Agreement, CBS has the right of
assignment of its rights and obligations under the settlement agreement, but only after
any attempted assignment is approved in writing by the City Commission. Arty
attempted assignment in violation, of these requirements is void. The City has not been
provided with any evidence that CBS has assigned its rights under the CBS Settlement
Agreement to Outlook. Media with regard to this Outdoor advertising sign, nor has the
City Commission been requested to approve any such assignment,
On November 6, 2008, Outlook Media, as lessee, and Sevennine, LLC., as owner,
submitted to the City the subject Permit Application for an Outdoor Advertising Sign at
the above-refercuced site without providing any evidence of: (a) CBS' consent to,
approval of, or joinder in. the Application; (b) an assignment of rights in the CBS
it Settlement Agreement to Outlook Media approved by the City Commission; and/or (c)
the satisfaction of the other requirements for the erection of an Outdoor advertising sign
under the CBS Settlement Agreement, including, but not limited to, the applicable sign
removal requirements and permit fees. This is in addition to the failure to secure an
FDOT permit for this site as indicated above. 'These material omissions prevent us from
taking any further action at this time except to deny the subject Permit Application,
Because of the City's denial of this Permit Application for the reasons set forth
above, this Application has not been reviewed by the necessary disciplines,
Consequently, the City reserves the right, should it be necessary in the future, to assert
any other defxcien6", technical or otherwise, that may exist in this Permit Application.
Should you have any questions, please do not hesitate to contact me. 'Thank you.
Sincerely,
4;0�—
)urdes S1azyk
Zoning Administrator
i
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANDRES MONSALVE,
Petitioner,
vs.
DEPARTMENT OF TRANSPORTATION,
Respondent,
and
OUTLOOK MEDIA OF SOUTH FLORIDA
LLC,
Intervenor.
Case No. 08-4039
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case
on November 4, 2008, by video teleconference with connecting
sites in Miami and Tallahassee, Florida, before Errol. H. Powell,
a designated Administrative Law Judge of the Division of
Administrative Hearings.
For Petitioner: Linda L. Carroll, Esquire
Carroll Law Firm
1260 SunTrust International Center
One Southeast Third Avenue
Miami, Florida 33131.-1714
For Respondent; Kimberly Clark Menchion, Esquire
Department of Transportation
605 Suwannee Street, Mail. Station 58
Tallahassee, Florida 32399-0458
For Intervenor: Joseph DeMaria, Esquire
Amanda Quirke, Esquire
Tew Cardenas LLP
1441 Brickell Avenue, Suite 1540
Miami, Florida 33131
STATEMENT OF THE ISSUE
The issue for determination is whether Petitioner's
applications for a State sign permit should be granted.
PRELIMINARY STATEMENT
On or about June 16, 2008, Andres Monsalve filed two
applications for a State sign permit with the Department of
Transportation (DOT). By Notice of Denied Application (Notice
of Denial) issued July 3, 2008, DOT notified Mr. Monsalve that
his applications were denied, pursuant to Section 479.07(3)(b),
Florida Statutes, for the failure to include a statement from
the appropriate local governmental official indicating that the
agency or unit of local government would issue him a permit upon
approval of the state permit application by DOT. On July 15,
2008, DOT issued an amended Notice of Denial, notifying
Mr. Monsalve that his applications were denied for the failure
to meet spacing requirements of 1500 feet between outdoor
advertising signs pursuant to Section 479.07(9)(a)l. and 2.,
Florida Statutes; for being in conflict with an existing
permitted sign; for the failure of the sign to comply with all
local government requirements pursuant to Section 479.07(3)(b),
Florida Statutes; and for the failure of the building permit
E
submitted with the application to comply with local governmental
requirements. Mr. Monsalve filed a Petition for Formal Hearing.
On August 19, 2008, this matter was referred to the Division of
Administrative Hearings.
On September 17, 2008, Outlook Media of South Florida, LLC,
(Outlook Media) filed a Corrected Motion to Intervene. The
motion was granted and Outlook Media was granted intervenor
status in this matter.
At hearing, Mr. Monsalve renewed his motion for continuance
that was previously denied. The renewed motion for continuance
was denied. Additionally, a motion to dismiss, filed by Outlook
Media, was denied.
Further, at hearing, Mr. Monsalve testified in his own
behalf and entered 14 exhibits (Petitioner's Exhibits numbered I
and 5-17)1 into evidence. DOT presented the testimony of one
witness and entered seven exhibits (Respondent's Exhibits
numbered 1-4, 7, 8, and 11)2 into evidence. Outlook Media
neither presented the testimony of any witnesses nor entered any
exhibits into evidence.
A transcript of the hearing was ordered. At the request of
the parties, the time for filing post -hearing submissions was
set for ten days following the filing of the transcript. The
Transcript, consisting of two volumes, was filed on November 17,
2008. DOT and Outlook Media timely filed their post -hearing
3
r
submissions. Mr. Monsalve failed to timely file his post -
hearing submission; however, no objection was made to his late -
filed post -hearing submission. Mr. Monsalve's post -hearing
submission is accepted as filed. The late -filing of the post -
hearing submission, without objection, is considered an
extension of the agreed upon ten-day filing period. The
parties' post -hearing submissions were considered in the
preparation of this Recommended Order.
FINDINGS OF FACT
1. No dispute exists that DOT is the State agency
responsible for regulating outdoor advertising signs located
within 660 feet of the State Highway system, interstate, or
federal -aid primary system in accordance with Chapter 479,
Florida Statutes.
2. Mr. Monsalve wishes to place two advertising signs
within 660 feet of Interstate 95 and visible to Interstate 95.
The advertising signs require a permit.
3. On or about June 16, 2008, Mr. Monsalve filed two
applications, completing DOT's forms titled "Application for
Outdoor Advertising Permit" (Application), with DOT for outdoor
advertising signs. The two applications indicated the same
location for the outdoor advertising but with different height,
width, and total square feet: one was a height of 4 feet, width
of 60 feet, and 240 total square feet, and the other was a
4
height of 12 feet, width of 12 feet, and 144 total square feet.
The two Applications were assigned Application numbers 57196 and
57197, respectively. The location for the proposed outdoor
advertising signs is 299 Southwest 17 Road in Miami, Florida,
near Interstate 95, North of Southwest 3rd Avenue,
4. Mr. Monsalve owns the property on which the advertising
signs are to be located.
S. The Application contained a section titled "Local
Government Permission." The section provided that it was to be
completed by the appropriate local government official or that a
"written statement indicating that the sign complies with all
local government requirements" may be submitted or, "for a
proposed sign location, a copy of the building permit issued by
the local government may be submitted." The section was neither
completed by the local government official nor was a written
statement submitted indicating that the signs comply with all
local government requirements. However, Mr. Monsalve submitted
a 1999 building permit from the local government. The local
government was the City of Miami.
6. The 1999 building permit was issued by the City of
Miami on July 13, 1999, to Hampton Inn for a commercial painted
wall sign, located at 299 Southwest 17 Road. The building
permit was issued Permit Number SG 99-5011166. The Folio
E
Number, i.e., Property ID Number, on the 1999 building permit is
No. 01-4138-002-0020.
7. Mr. Monsalve owns the property for which the 1999
building permit was issued for the advertising sign. The
property is the same property identified on his Application,
assigned Application number 57197.
B. DOT requires that, in order for building permit to
constitute "local government permission," the permit must have
been issued within six months of the date of an application for
an outdoor advertising sign. The 1999 building permit submitted
by Mr. Monsalve was beyond the six-month time period of the date
of Application number 57197.
9. Furthermore, by letter dated June 25, 2008, the City of
Miami notified DOT that the 1999 building permit no longer had
legal status due to the City of Miami changing its laws
regarding billboards and that Mr. Monsalve did not have local
government permission.
10. The evidence demonstrates that the 1999 building
permit did not constitute local government permission.
11. The evidence failed to demonstrate that Mr. Monsalve
had obtained local government permission.
12. xn March 2004, DOT issued a permit to the Hampton Inn
for an outdoor advertising sign on Mr. Monsalve's property. The
permit was issued Tag Number CA179, and the sign was built on
0
August 19, 2004. The permit information provides, among other
information, that the location of the outdoor advertising sign
was located 0.040 miles North of Southwest 3rd Avenue and that
the sign was 144 square feet.
13. Hampton Inn and Mr. Monsalve entered into an
agreement/contract for Hampton Inn to lease outdoor advertising
space from Mr. Monsalve at 299 Southwest 17 Road, Miami,
Florida. A Second Lease Agreement between Mr. Monsalve and the
Hampton Inn indicates in provision numbered one that the lease
agreement was extended until March 31, 2007. The evidence
demonstrates that, subsequent to March 31, 2007, the lease of
the space by the Hampton Inn continued on a month-to-month basis
and that the last time that Mr. Monsalve received payment for
the monthly lease was in March 2008.
14. The location for the outdoor advertising sign permit,
Tag Number CA179 is the same location of Mr. Monsalve's proposed
outdoor advertising sign in Application number 57197.
15. In June 2008, the outdoor advertising sign permit, Tag
Number CA179, was transferred from Hampton Inn to Outlook Media
using DOT's form titled "Outdoor Advertising Permit Transfer
Request." The permit is considered by DOT to be currently
active.
16. The location for Mr, Monsalve's Application number
57197 is currently permitted to Outlook Media due to the
7
transfer of outdoor advertising sign permit, Tag Number CA179 to
Outlook Media.
17. The distance between the proposed sign in
Mr. Monsalve's Application number 57196 and the space in the
outdoor advertising sign permit, Tag Number CA179, is less than
1500 feet.
18. The evidence demonstrates that the sign in
Mr. Monsalve's Application number 57197 conflicts with the
outdoor advertising sign permit, Tag Number CA179, in that the
two are the same location,
19. Mr. Monsalve believed that he, as the property owner,
owned the outdoor advertising sign permit, Tag Number CA179, as
well. He did not agree for the permit to be transferred.
Mr. Monsalve was not aware that the outdoor advertising sign.
permit, Tag Number CA179, had been transferred by Hampton Inn to
Outlook Media. The evidence was insufficient to demonstrate
that he owned or did not own the permit or that his permission
was required for the permit to be transferred.
20. Mr. Monsalve did not agree to lease the space for the
outdoor advertising sign permit, Tag Number CA179, to Outlook
Media.
21. Mr. Monsalve notified DO'S` that a problem existed
between him and the City of Miami regarding obtaining local
government permission and requested DOT to put his Application
on "Hold" in order to provide him with time to resolve the
problem, He also notified DOT regarding his dispute with the
transfer of the outdoor advertising sign permit, Tag Number
CA179, to Outlook Media. DOT is unable to place applications on
hold but is required to act on applications within 30 days.
22. Also, Mr. Monsalve notified the City of Miami, among
other things, of his dispute with the transfer of the outdoor
advertising sign permit, Tag Number CA179, to Outlook Media, and
that he did not give Outlook Media permission to erect a sign on
his property for which the outdoor advertising sign permit, Tag
Number CA179, was issued,
23. By Notice of Denial issued on July 3, 2008, DOT
notified Mr. Monsalve that his Applications were denied for the
following reason:
Other: No statement from the appropriate
local governmental official indicating that
the agency or unit of local government will
issue a permit to the applicant upon
approval of the state permit application by
the Department (Section 479.07(3)(b),
Florida Statutes).
24. On July 15, 2008, DOT issued an amended Notice of
Denial, notifying Mr. Monsalve that his Applications were denied
for the following reasons:
Sign does not meet spacing requirements
(1500' for interstates )
S.479.07(9) (a) 1. &2 . , FS
1n conflict with permitted sign(s), tag #(s)
E
CA 179 held by Outlook Media of South
Florida, LLC . . .
Sign/location does not comply with all local
government requirements . . .
s. 479. 07 (3) (b) , FS
Other: The building permit submitted with
the application is not in compliance with
local governmental requirements.
25. No evidence was presented to demonstrate that, a
determination had been made as to what Mr. Monsalve's legal
rights are as the owner of the property regarding his lease
agreement/contract with the Hampton Inn and the outdoor
advertising sign permit, Tag Number CA179; and regarding the
transfer of the outdoor advertising sign permit, Tag Number
CONCLUSIONS OF LAW
26. The Division of Administrative Hearings has
jurisdiction over the subject matter of this proceeding and the
parties thereto pursuant to Sections 120.569 and 120.57(1),
Florida Statutes (2008).
27. These proceedings are de novo. § 120.57(l)(k), Fla.
Stat. (2008) .
28. The general rule is that "the burden of proof, apart
from statute, is on the party asserting the affirmative of an
issue before an administrative tribunal." Florida Department of
Transportation v. J. W. C. Company, Inc., 396 So. 2d 778, 788
10
(Fla. .1st DCA 1981). Mr. Monsalve has the ultimate burden of
proof by establishing through a preponderance of evidence that
he is entitled to the permit for which he has applied from DOT.
Department of Banking and Finance, Division of Securities and
Investor Protection v. Osborne Stern and Company, 670 So. 2d 932
(Fla. 1.996); Antel v. Department of Professional Regulation
Florida Real. Estate Commission, 522 So. 2d 1056, 1.058 (Fla. 5th
DCA 1988); J. W. C. Company, Inc., supra.; § 120.57(1)(j), Fla.
Stat, (2008) .
29. Section 479.07, Florida Statutes (2007) and (2008),
provides in pertinent part:
(1) [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
incorporated 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. For
purposes of this section, "on any portion of
the State Highway System, interstate, or
federal -aid primary system" shall mean a
sign located within the controlled area
which is visible from any portion of the
main -traveled way of such system.
(2) A person may not apply for a permit
unless he or she 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 application for the permit.
(3)(a) An application for a sign permit
must be made on a form prescribed by the
11
department., and a separate application must
be submitted for each permit requested. A
permit is required for each sign facing.
(b) As part of the application, the
applicant or his or her authorized
representative must certify in a notarized
signed statement that all information
provided in the application is true and
correct and that, pursuant to subsection
(2), he or she 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 must
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 the placement of the
sign on that site; and, where local
governmental regulation of signs exists, a
statement from the appropriate local
governmental official indicating that the
sign complies with all local governmental
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.
(4) An application for a permit shall be
acted on by the department within 30 days
after receipt of the application by the
department.
(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 $ [sicj 5 for each permit to
be transferred. However, the maximum
transfer fee for any multiple transfer
12
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:.
(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.
30. The evidence demonstrates that Mr. Monsalve is
requesting a permit for an outdoor advertising sign on
Interstate 95 highway. § 479.07(1), Fla. Stat, (2007) and
M
31. The evidence demonstrates that the proposed location
for the outdoor advertising sign for Application number 57195 is
less than 1500 feet from an already permitted outdoor
advertising sign, i.e., Tag Number CA179, on the same side of
the Interstate highway and, therefore, fails to meet the
requirement of Section 479.07(9)(a)1„ Florida Statutes (2007)
and (2008) .
32. Further, the evidence demonstrates that Mr. Monsalve's
sign location for Application number 57197 conflicts with the
permitted outdoor advertising sign, Tag Number CA179.
13
33. The evidence fails to demonstrate that the 1999
building permit from the City of Miami submitted by Mr. Monsalve
with his Applications was issued within six months of his
Applications filed with DOT for the outdoor advertising sign
permit.
34. The evidence fails to demonstrate that Mr. Monsalve
has obtained the local governmental permission, and, therefore,
his Applications fail to meet the requirement of Section
479.07(3)(b), Florida statutes (2007) and (2008).
35. Mr. Monsalve argues that a dispute exists as to
whether the outdoor advertising sign permit, Tag Number CA179,
was lawfully transferred to Outlook Media by Hampton Inn, and,
therefore, whether Tag Number CA179 lawfully belongs to Outlook
Media. Even though Section 479.07, Florida Statutes (2007) and
(2008), contains provisions setting forth certain requirements
to be met between an applicant or a permittee and the owner of
the sign site or other person in lawful control of the sign
site, a resolution of this dispute in these proceedings is not
within the authority of this Administrative Law Judge,
36. Moreover, Mr. Monsalve argues that the outdoor
advertising sign permit, Tag Number CA179, became invalid at the
termination of the lease agreement for the sign space with the
Hampton Inn on March 31, 2007, citing Lamar Advertising Company
v. Department of Transportation, 490 So. 2d 1315 (Fla. 1st DCA
14
1986). 1n Lamar, supra, the pertinent fact to the instant
matter, as agreed to by the parties and adopted by the
Department of Transportation, pertaining to the instant matter,
was that the owner of the property on which the outdoor
advertising sign was located notified the lessee, who was the
permittee for the sign, that the lease would be terminated and
requested the lessee to remove the sign by June 30, 1984; and
the pertinent conclusion of law, as adopted by the Department of
Transportation, was that the lease on the property terminated on
June 30, 1984. The court held that the permit became invalid
under Section 479.13, Florida Statutes, which provided that "No
person shall construct, erect, operate, use or maintain any
outdoor advertising structure, outdoor advertising sign or
advertisement without the written permission of the owner or
other person in lawful possession or control of the property on
which the structure or sign is located."; that the prerequisite
to issuance of a permit for an outdoor advertising sign by the
Department of Transportation was the property owner's permission
in writing; that the permit became invalid on the date that the
lease was terminated, June 30, 1984, and that the "permit ceased
to exist as an impediment due to Section 479.13" and "cannot
form the basis for denial of a valid permit." Lamar, at 1318.
37. The court in Lamar, supra, recognized, in a footnote,
that Section 479.13, Florida Statutes was repealed in 1984 and
15
replaced in substance with Section 479.07(7), Florida Statutes
(Supp. 1984). Section 479.07(7), Florida Statutes (Supp. 1984)
is no different from Section 479.07(7), Florida Statutes (2007)
and (2008). In the instant matter, no agreement exists between
the parties as to the termination of the lease agreement between
the Hampton Inn and Mr. Monsalve. Further, the evidence is
insufficient to establish whether the lease agreement was
terminated, and, if so, the date of termination. Additionally,
the evidence fails to demonstrate that a determination has been
made as to what Mr. Monsalve's legal rights are as the owner of
the property regarding his lease agreement/contract with the
Hampton Inn and the outdoor advertising sign permit, Tag Number
CA179. Even assuming that the lease agreement between
Mr. Monsalve and the Hampton Inn terminated prior to
Mr. Monsalve filing his Applications and that the outdoor
advertising sign permit, Tag Number CA179, became invalid prior
to the filing of his Applications, the Applications still fail
to meet the requirement of obtaining local government
permission.
38. Further, Mr. Monsalve argues that he was entitled to
local governmental permission. The City of Miami refused to
give local governmental permission. A dispute exists between
Mr. Monsalve and the City of Miami as to whether he should
receive local governmental permission. This Administrative Law
16
Judge is without authority in these proceedings to address the
dispute.
39. Additionally, Mr. Monsalve argues that DOT should have
delayed making a determination on his Application to afford him
an opportunity to resolve the aforementioned disputes. DOT is
required to act on an application for a permit within 30 days of
receiving the application. 9 479.07(4), Fla. Stat. (2007) and
(2008). DOT was statutorily obligated to make a determination.
within 30 days of receiving Mr. Monsalve's Application, and DOT
did so. DOT made its determination on Mr. Monsalve's
Application within the 30 -day time period.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, i t i s
RECOMMENDED that the Department of Transportation enter a
final order denying Andres Monsalve's application for an outdoor
advertising sign permit.
17
DONE AND ENTERED this 17th day of December 2008, in
Tallahassee, Leon County, Florida,
ERROL H. POWELL
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399--3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921--6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 17th day of December, 2008.
ENDNOTES
1/ Petitioner's Exhibits numbered 2-4 were rejected.
2/ Respondent's Exhibit numbered 5 is the same as Petitioner's
Exhibit numbered 10. Respondent's Exhibit numbered 9 is
contained in Petitioner's Exhibit numbered 7.
3/ No testimony was presented by a witness from the City of
Miami.
COPIES FURNISHED:
Linda L. Carroll, Esquire
Carroll Law Firm
1.260 SunTrust International Center
One Southeast Third Avenue
Miami, Florida 33131.-1714
RM
Kimberly Clark Menchion, Esquire
Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0458
Joseph DeMaria, Esquire
Amanda Quirke, Esquire
Tew Cardenas LLP
1441 Brickell Avenue, Suite 1500
Miami, Florida 33131
Stephanie Kopelousos, Secretary
Department of Transportation
Haydon Burns Building
605 Suwannee Street, Mail Station 57
Tallahassee, Florida 32399-0450
Alexis M. Yarbrough, General Counsel
Department of Transportation
Haydon Burns Building
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450
James C. Myers, Clerk
Department of Transportation
Haydon Burns Building
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
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.
19
t 1 t
L
Floiida Department cif Transportation
CUMMIR MUST 5135 Suwannae Slraet 97EN IAMI: G. XWELOUNON
GbMMOR 7ullahnssee, FL32349.4450 SECKEWty
July 3, 20013
Outlook Media of Soulh Florida LLC
2295 S. Hiviwassee Road, Suite 203
Orlando, Florida 32835
RE: Outdoor AdverHsing Permit Appl[catlon(s), #57213 and 57214
" Proposed Location: 50 fest west of SIN 3 Avenue
Gantlemen:
We are unable to review your permit applicadon(ti) for the above -referenced location at
this lima. Prior to recelpt of your application, we received an application for a competing
location.
Pursuant to Section 14-10.044(1)(e), Florida AdurinistraWe Coda, your applicatlon(s) uvlll
be held without action by the Department until the pending status of the earlier
application Is resolved, You will be not[fiud when this occurs.
If you wish to withdraw your applications, please submit a written request to me at Mall
Station 22 at the address above, referencing the application numbers shown. All
application materials, including the check and all attachments will be returned td you.
if you have further questions, please contact me at Juanlce,Hagan@dot,state.fl.us.
SIncarely,
—j YU id.,r( Jcn:
Juanita M, Hagen
Deputy State Right of Way Manager
Outdoor Advertising
wwvY, dal . SGa': e.[I. uS & saF-� PAM