HomeMy WebLinkAboutSubmittal-Peter Ehrlich-Correspondencefrlf,tit'tv*, AI (AV.;
Ananth Prasad, P.E.
Secretary
Florida Department of Transportation
605 Suwannee Street
Tallahassee, Florida 32399-0450
William lithium
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July 8, 2013
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Re: False Representations of Customary Size of Outdoor Advertising Signs in Nliami, FL;
Proposed Two -Party Agreement and Proposed Three -Party Agreement
Based upon false representations of "Customary Size"
Dear Secretary Prasad:
Thank you for taking the time to review the important matter addressed in this letter. As you
know, 1 have developed a considerable degree of knowledge over the past thirty years on the
subject of outdoor advertising. This matter is agent importance to the scenic community in
this state and across the nation.
Late last week, I read the two agreements that await your signature. The agreements pertain to
the City of Miami and to outdoor advertising regulations for billboards displayed on the walls of
buildings. The agreements involve the federal Highway Beautification Act (HBA) adopted on
October 22, 1965 and the State -Federal Agreement dated January 27, 1972.1 I understand that
neither of these agreements have been signed. One of the agreements is drafted for signature by
David C. Hawk, the Acting Division Administrator, FHWA, Florida Division. I believe that the
FHWA Administrator, Victor Mendez, is generally aware of the subject matter of these
agreements, but I sincerely doubt that he is aware oldie details set forth in this letter. 1 will
share the same with the FHWA Administrator and the FHWA Chief Counsel.
To be blunt, false representations have been made as to the customary size of outdoor advertising
signs in the City of Miami at the critical dates to secure your agency's approval. If you agree
that there is sufficient basis to find these representations to be suspect, I urge you to order a re-
examination of what is set forth in the agreements and in the exhibits to the agreements.2
Isolated photographs of illegal or ,ionconforniing billboards that existed in the City of Ivliami
should be no basis for determining the cusiontaiy size of outdoor advertising signs within the
City of Miami between October 22, 1965 and January 27, 1972.
The agency should locus attention on (1) an accurate history of outdoor advertising in the City
of Miami leading up to the laws passed by the city and the county prior to October 22, 1965 and
(2) the laws on the books on October 22, 1965 and up through the effective date of the State -
Federal Agreement signed on January 27, I 972 (the "relevant period").
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llonorable Ananth Prasad
July 8, 2013
Page 2
The notion that outdoor advertising displays (billboards) up to 10,000 square feet were in any
way widespread, C0111111011 and a general practice during that time period is a blaiant falsehood.
Thc custom-11y size of lawfill billboards along HBA control areas during the relevant period was
750 square feet or less. However, the City of Miami appears to have incorporated the arguments
of a representative of a billboard company in presenting its own position to FHWA and FDOT.
The photographs incorporated into the three party agreement that has been prepared your
signature demonstrate my point about how billboards that would have been illegal (0i.
nonconforming) have been presented as the basis for your approval. An overview of each of
those photographs is included herewith.3
1 am shocked that anyone would promote these photographs as support for the false claim that
10,000 square foot billboards were customary and in widespread use at the time of the passage of
the HBA, or even later when Governor Askew signed the State -Federal Agreement in 1972.
Mr. Jessee and other FDOT staff members did an excellent job in the preparation of a
spreadsheet that identifies the locations of existing wall billboards (murals) within the HBA
control area and providing other useful data. Some of that information, however, has not been
carried forward in the agreements that have been presented for signature.
No one within FDOT, however, was tasked with including columns to identify the wall mural
billboards:
(a) that would be prohibited by Miami -Dade County's July 2, 1963 ordinance
banning expressway billboards (note the full text of the 1963 ordinance is
contained in the reported decision of E. B. Enjoy Adv. Co. i'. illeiropolikin Dade
Courtly, 425 F.2d 1141 (5th Cir. 1970));
(b) that would be prohibited by 1Vlianii-Dade County's July 2, 1963 ordinance that
established a maximum size limit of 750 square feet for general outdoor
advertising signs that were located within an area between 201 to 600 feet away
from an interstate, freeway, or expressway, and oriented toward a different
roadway;
(c) that would be prohibited by the city's July 20, 1965 ordinance that prohibited
general advertising signs from being erected, constructed, altered, maintained or
relocated within 600 feet of the right-of-way lines of any limited access highway,
including expressways, unless such sign is faced away from any such highway.
(d) that would exceed the maximum size set forth in the city's July 20, 1965
ordinance that limited general advertising signs, flat, to the C-4 District and
adopted the size (area) limitations for owner -identifications signs.
1 have reviewed the controlling law, the spreadsheet, and other uselld information. This includes
copies of newspaper articles and editorials for the period from 1952 to 1972, which were recently
obtained from archives by Miami residents and a UM law student, Those print materials provide
SilbillittGe into the public'
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I lonorahle Ananth Prasad
July 8, 2013
Page 3
insightful context on the City of Miami's ongoing struggles with outdoor advertising and
enforcement issues with illegal signs.
1 recommend that attention be given to the reform efforts led in 1963 by the late Judge Spaet, a
Miami -Dade Commissioner, and in 1965 by Miami Mayor Robert King High.
On Friday, June 28, 1963, a Miami Herald editorial stated:
Metro's good tough law sponsored by Commissioner Harold Spael's billboard
committee comes up fin. public hearing July 2. It applies to all expressways, not
just those in the interstate system. The ordinance imposes. 200-jbot billboard five
strips on the expressways. For the next 00 feet, signs would he limited in size
and spacing and would have 1oface the other way.
11 's a good lmi'. Commissioners should repel the inevitable pressures to lingo'
about it.
On Wednesday, July 3, 1963, the Miami Herald reported on the passage °Idle ban on
expressway billboards and stated:
Evressway billboards were banned Tuesday by the Metro Commission.
But it will be jive years before those that are already up have to come down.
The action came in an 8-2 vole approving a long -pending ordinance regulating
the use of outdoor (Overtising signs. It came over vigorous protest Jo,,z the
billboard and electric sign industries..
Commissioner Harold Spaet, chairman of the Metro committee that drafted the
ordinance, led the fight fin. passage. He said the measure ll'aS a compromise.
On February 21, 1965, a Miami Herald article commented on aspects of sign ordinance revisions
under consideration, and noted that the county based the size of the sign on the frontage of the
property on which it is located.
In addition to keeping billboards out of some areas and during such clusters of
signs for one business (Ind those used by service stations, the proposed city
ordinance would establish a ratio between wall signs and the size of walls; small
building, small sign.
Coral Gables also uses the ratio system but more stringently. The county bases
the size of a sign on the frontage of the property on which it is located, rather
than on the size of the building.
And so it was when the City passed a new sign ordinance on July 20, 1965, the size of tlat signs
used a formula tied to the building frontage. The same formula was also used to limit the size of
Ilat signs when used for general advertising purposes in the C-4 District. A ban on expressway
Submitted Into the public
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llonorahle Ananth Prasad
July 8, 2013
Page 4
billboards (similar to the county ban from July 1963) was also included in the ordinance that was
adopted and became effective on October 22, 1965.
The agreements prepared tier your signature contain numbered map locations for existing mural
billboards. Twenty-nine (29) mural billboards would be prohibited by the billboard bans
adopted by Miami -Dade County in July 1963 and by the City ofMiami in July 1965. These bans
would completely bar the mural billboards identified as Mural Os I, 5, 6, 7, 8, 9, 10, 11, 12, I 7,
18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 35, 46, and map locations al 1525 NW
711) Avenue and 444 NW 2nd Avenue.
In addition to these banned locations, two (2) mural billboards, Mural 4#s 4 and 13, would be
subject to the 1963 ordinance's 750 square foot size limitation because they were oriented to
streets other than the expressways and were within 600 linear feet of those expressways.
The County's expressway ban and size limitation did not impact Mural tiils 2 (Biscayne Blvd.), 6
(Biscayne Blvd.), 14 (Biscayne Blvd.), 15 (3rd) , 16 (2nd) , 31 (Flagler), and 34 (8111). However,
these locations would have all been subject to the size limitations for flat signs that were based
upon owner -identification signs. These size limitations applied to all of the other mural
billboards.
It is critical that someone take the time to compare the size limitations for owner -identification
signs from the 1965 ordinance with all of the Mural ##s, whether expressway or non -
expressway. I believe that not one of the current billboard mural sizes will comport with the size
constraints set forth in the 1965 ordinance for owner -identification signs. The 1965 ordinance is
an attachment to one of the documents prepared for your signature.
It is unconscionable to go forward with a fictional "customary" size on the date of passage oldie
HBA for locations where billboards were in fact banned, and there can he no approved size in
those locations where the law contained a complete prohibition.
It is also unconscionable to ignore the size restrictions in the 1965 city ordinance. The size
restrictions as contained in that ordinance should be evaluated as to each and every mural
billboard on the FDOT spreadsheet. If someone has already performed that exercise, then I hope
that it would be shared, but if not then the question will be asked why such an evaluation was not
made when there was in fact a size limitation on flat signs on October 22, 1965 that remained the
law on January 27, 1972.
A 60-day time period should he sufficient to undertake a closer scrutiny of the facts and an
accurate assessment of the background to the proposal.
William D Brinton
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Honorable Ananth Prasad
July 8, 2013
Page 5
Offsite outdoor advertising signs displayed on thc walls of buildings have been referred to by
various (elms, such as flai signs, wall izurals and srallscapes, and such signs displayed on
freestanding sign structures have been referred to as deiached signs, monopoles and 1-Beams.
Such signs are either painted on building walls or flat surfaces, or are displayed in a more
temporary manner that involves affixing advertising copy through the utilization of vinyl or othcr
fabric material. All such offsite advertising sign faces are commonly referred to as billboards,
without regard to the type of support structure.
There are other issues with these agreements that also have far reaching consequences. The
separate regulation of freestanding signs and wall signs for outdoor advertising control purposes
has no known precedent under the HBA. Such treatment makes a mockery of customary spacing
for outdoor advertising along controlled roadways. For example, a billboard face on a
freestanding sign is proposed to bc allowed within 150 feet away from a billboard face on a
building wall along an interstate, as opposed to the minimum spacing of 1,000 feet in the State -
Federal Agreement. The city's current regulatory scheme for billboards on the walls of buildings
is an unconstitutional speech licensing scheme, where the so-called permit fees are nothing more
than license fees for the right to display speech on private property. The permission to speak
through the medium of signage is conditioned upon payments to the government ranging from a
minimum of $48,000 per year to a maximum of $120,000 per year. 1 do not see how such a
speech licensing scheme could survive constitutional challenge on First Amendment grounds.
Finally, the state agency's role is that of a regulator for purposes of enforcing the HBA. There is
no precedent for a state agency to participate in sharing in gross revenue from a speech licensing
scheme for signage on private property. Under the scheme as contained in the documents drafted
for your signature, FDOT would receive the benefit of monies, ranging from $24,000 to $60,000
per sign per year, that would be placed in a separate fund from the so-called "permit fees." As
mentioned above, thc government "permit fees" are for licensing speech and the scheme is
patently unconstitutional.
Submitted !n!f.) the public
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I lonorable Ananth Prasad
July 8, 2013
Page 6
The following table addresses the photos submitted as part of the effort to secure your
approval.
Exhibit
w/ Photo
Exhibit Caption
Facts Which Nlay Not Have Been Presented to You
Exhibit D
1950's - Entryway from
1-395 into Downtown
Nliami. Signs located
along Biscayne Bay
and along fuel tanks.
Nlianti City Ordinance No. 7338, at p. 7 (July 20, 1965) ('.
October I, 1965):
• Biscayne Bay, the Miami River, and the Miami Canal were
designated Scenic Waterways. General advertising signs
were prohibited from being within 200 feet of the official
harbor line or existing bank.
• General advertising signs were prohibited from being
within600 feet of a limited access highway (such as 1-395)
unless faced away from such highway.
• All detached general advertising signs were limited to a
size no greater than 750 square fect.
Miami -Dade County Ordinance No. 63-26 (July 2 1963)
(eff. July 12, 1963)
• All general advertising signs were banned within 600 feet
of 1-395 if oriented to the interstate. A five year amortization
period was established for their removal. No variances or
exceptions ‘vere allowed.
• If more than 200 feel from 1-395 and oriented to another
roadway, the size was restricted to a maximum of 750 square
feet.
Summary:
All of the billboards depicted in Exhibit D were illegal or
nonconforming since July 12, 1963 and remained illegal
or nonconforming through January 27, 1972.
Exhibit E
See above
[The same photo as
Exhibit D, but with arrows
pointing to the detached
signs facing Biscayne Bay
and 1-395]
See above.
Summary:
All of the billboards depicted in Exhibit E were illegal or
nonconforming since July 12, 1963 and remained that
way through January 27, 1972.
Submitted MI6 the pubii6
Ifonorable Ananth Prasad
July 8, 2013
Page 7
Exhibit F
1955 - Approximately al
1300 Biscayne Blvd. lacing
South.
NI iami City Ordinance No. 7338 (July 20. 1965) (eff.
October 1, 1965):
• All detached general advertising signs were limited to a
size no greater than 750 square feet.
• No permits could be issued for roof signs, and all existing
roof signs had to be removed within twelve years.
• Flat signs for general outdoor advertising in the C-4
District were constrained by the area requirements for owner
identification signs, and other limitations were included such
as one flat sign per building wall.
Summary:
All of the billboards depicted in Exhibit F were illegal or
nonconforming since at least October 1, 1965 and
remained that way through J11111U1117 27, 1972.
Exhibit G
1962 - Downtown Miami
Courthouse to the left and
Industrial national Bank on
Flagler Street
Miami City Ordinance No. 7338 (July 20, 1965) (eff.
October 1. 1965):
• All detached general advertising signs were limited to a
size no greater than 750 square feet.
• No permits could be issued for roof signs, and all existing
roof signs had to be removed within twelve years.
Summary; The detached general advertising sign ou this
rooftop was either illegal or nonconforming ou or before
October 1, 1965, aud reinained either illegal or
nonconforming through January 27, 1972. At the time of
the passage of the HBA, such n sign could not exceed 750
square feet.
Exhibit I
1969 - Miami Waterfront
along Biscayne Blvd, (US 1)
This photo appears to capture the Coppertoite advertisement
that was placed on the north wall of the Parkleigh House in
1959. This iconic sign has a unique history in the City of
Miami and has been moved several times over the years. In
fact the unique nature of this sign makes it far from being a
size that was customaiy, widespread and in common use at
the time of passage or the HBA on October 22, 1965.
1.'r1 publi
llonorablc Ananth Prasaci
July 8, 2013
Page 8
EN
bit J
No caption
[Depiction of Copperione
girl and dog in connection
with placement of sign at
new location, circa in 2008]
s original sign was erected in 1959 al the north wall of
'ark leigh House at 530 Biscayne Boulevard. In 1991, it
was moved to a warehouse. In 1995 it was mounted on the
east wall of the Concord Building at 66 W. Flagler Street. In
2008, it was removed again and stored at a sign company.
The same year an exemption was utilized lio allow this sign
to be placed in December 2008 at 7300 Biscayne Boulevard
(see Historic and Environmental Preservation Board, LHD-
2008-0'I). This sign would not comply with the ordinance
‘‘,ithout an exemption, tvhich it qualified for.
Miami City Ordinance No. 7338 (July 20, 1965) fell
October 1, 1965):
• Flat signs for general outdoor advertising in the C-4
District w,ere constrained by the area requirements for owner
identification signs, and other limitations vere included such
as one flat sign per building wall. Any flat signs iliat existed
on October 1, 1965 that did not meet this size limitation
would become nonconforming and subject to removal after 5
yeais, unless granted n variance or an exception. The
exemption created for a historic sign does not support that
he notion that this sign was representative of what would be
allowed for size at the time of the passage of the HBA on
October 22, 1965.
Ex
950's - Newspaper article
regarding Royal Castle on
Biscayne Blvd. and Tenth
Street.
The photo refers to Royal Castle's home office at Biscayne
Blvd. and Tenth Street. There was an onsite roof sign for
Royal Castle at this location, and roof signs became
nonconforming on October 1, 1965. There is also a detached
rooftop sign featuring an ad for a blended whiskey above a
package store. It also became nonconforming on October 1,
1965 and even if it was not a roof sign it would be subject to
a 750 square foot size limitation. Nothing in this newspaper
article supports the proposition that the custom!), size of
outdoor advertising signs was greater than 750 square feet
under the law in effect at the time of passage of the HBA.
In fact, both of the signs featured in this newspaper article
appear to have been onsite signs.
Submitted !no the public.
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I lonorable Ananth Prasad
July 8, 2013
Page 9
Exhibit .
1940 - Single building with
two murals located just off
US- I.
Note: This photo refers to mural ads on a building vat'
along US-1 more than two decades before the passage of the
HBA. This photo was taken long before ordinances were
adopted in the 1950s and 1960s to address the proliferation
of outdoor advertising and their size. The question that must
be asked is whether these murals would have been lawful
under the ordinance that was adopted on July 20, 1965 and
effective on October 1, 1965, and the answer seems to be a
clear no - given the multiple constraints placed upon flat
signs used as general advertising signs.
Exhibit Nil
1927 - The Miami Tribune
newspaper building with a
mural located ou the same.
side of the building.
The very title of this photo exhibit establishes that this
pre -World War 11 advertisement would have been illegal
tinder the City of Miami ordinance passed on July, 20, 1965
and that became effective on October I, 1965. A flat sign
used as a general advertising sign could not be placed on a
building wall if there was any other sign there.
Furthermore, the sign size was limited by the 1965 formula,
and that formula precluded this size. If the linear frontage
was 75 feet (for exatnple), then the maximum size would
have been less than 400 square feet.
The 1927 photo of the Southern Dairies ad copy for The
Ve/vel Kind Ice Cream can be found at the following
address:
lutp://www.floridamemory.com/itents/show/34024
Exhibit N
1946 - Franklin -Webster
billboard for Miami -based
Regal Beer painted by Burl
Grey
This is a photo of a detached general advertising sign
(billboard). The location is not identified. If it was located
in a manner so as to be viewed from an expressway, it would
have been banned as of 1963. The maximum size for such a
sign by July 20, 1965 was not greater than 750 square feet.
Exhibit 0
1955 - National Airlines
billboard in Miami
advertising new DC-7 Star
service to New York,
Washington and Havana
This is a photo of a detached general advertising sign
(billboard). The location is not identified. Ifit was located
in a manner so as to be viewed fioni an expressway, it would
have been banned as of 1963. The maximum size for such a
sign by July 20, 1965 was not greater than 750 square feet.
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