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HomeMy WebLinkAboutSubmittal-Peter EhrlichROGERS TOWERS A I A Ananth Prasad, P.E. Secretary Florida Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 1). 9114 . i46. 5537 WFirititetn0Prthiw.cotii July 8, 2013 1301 RiN critbic tilkA JAI . Sum. J3ck.4rovilc,11("1.1 11:1))7 904 398.3911 Maio 904. 316 . 046$ Fax %WAN', rtilw ctitit 1,17t9--C.I.s1 )013 JLi Re: False Representations of Customary Size of Outdoor Advertising Signs in Miami, 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 !mow, I have developed a considerable degree of knowledge over the past thirty years on the subject of outdoor advertising. This matter is of great importance to the scenic community in this state and across the nation. Late last week, 1 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 (1-IBA) adopted on October 22, 1965 and the State -Federal Agreement dated January 27, 1972.1 T 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. 11 believe that the FHWA Administrator, Victor Mendez, is generally aware of the subject inatter of these agreements, but I sincerely doubt that he is aware of the details sct 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 custommy .vize 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 rind these representations to be suspect, 1 urge you to order a re- examination of what is set forth in the agreements and in the exhibits to the agreements. Isolated photographs of illego/ or nonconforming billboards that existed in the City of Miami should be no basis for determining the customary size of outdoor advertising signs within the City of Miami between October 22, 1965 and January 27, 1972. The agency should focus attention on ( I ) an accurate history of outdoor advertising in the City of Ivlianti 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 ihe effective date of the State - Federal Agreement signed on January 27, 1972 (the "relevant period"). 14- 003? 512 ;lid- c1 r E /I'd) VII FYI', I Ionorable 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 common and a general practice during that time period is a Nolan! falsehood. The casiontaly size of/my/id 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 FLIWA 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 (or nonconforming) have been presented as the basis for your approval. An overview of each of those photographs is included herewith! I 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 al the time of the passage of the I IBA, 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 °la 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. Elliott Adv. Co. v. Aleiropoliian Dade Calmly, 425 F.2d 1141 (5th Cir. 1970)); (b) that would be prohibited by Miami -Dade County's July 2, 1963 ordinance that established a maximum size limit or 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. have reviewed the controlling law, the spreadsheet, and other useful information. This includes copies of newspaper articles and editorials for the period from 1952 to 1972, which ‘vere recently obtained from archives by Miami residents and a UM law student. Those print materials provide 1..;t4H-V11477: = RErnRD FOR EAR, ON oribo It I lonorahle Ananth Prasad July 8, 2013 Page 3 insightful contact on the City of Miami's ongoing struggles with outdoor advertising and enforcement issues with illegal signs. I recommend that attention be given to the reform etlbrts 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 laugh law sponsored by Co,mrrissioner Harold Spael 's billboard committee comes up fur public hearing July 1. It applies to all expressways, not jrrsl !hose in the interstate system. The ordinance imposes 200-Jbol billboard free strips on the expre.ssai'cq+s. For the next 400 feel, signs would he limited in size and spacing and would have to ace the other way. h 's a good law. Couuniss•iuners should repel the inevhable pressures to forget about it. On Wednesday, July 3, 1963, the Miami Herald reported on the passage of the ban on expressway billboards and stated: Expressway billboards were banned Tuesday by the Metro Commission. Bul it will be Jive years before those that are already up have to come down. The action came in an 8-2 vote approving a long pending ordinance regulating the ruse of outdoor advertising signs. it came over vigorous protest from the billboard and e/ecric sign industries. Commissioner Harold ..Spaet, chairman of the Metro committee that drafted the ordinance, led the fight fir passage. He said the measure was a compromise. On February 21, 1965, a Miami Herald article commented on aspects ol'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. ha addition to keeping billboards out of some areas and during such clusters of signs for one business and 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 sysleur hul more stringently. The county bases the size of sign on the frontage of the property on which 11 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 irontage. The same formula was also used to limit the size of llat signs when used for general advertising purposes in the C-4 1?-_istrie0.►bt ce*' sti fi � RECORD FOR EMFK. ON o7lio/l4 I lonorable 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 for your signature contain numbered map locations for existing mural billboards. Twenty-ninc (29) mural billboards would be prohibitcd by the billboard bans adopted by N./Hann-Dade County in July 1963 and by the City ofMiami in July 1965. These bans would completely bar the mural billboards identified as Mural ##s I, 5, 6, 7, 8, 9, 10, 11, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 35, 46, and map locations at 1525 NW 7th Avenue and 444 NW 2" Avenue. In addition to these banned locations, two (2) mural billboards, Mural ##s 4 and 13, would be subject to the 1963 ordinance's 750 square fool 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 Os 2 (Biscayne Blvd.), 6 (Biscayne Blvd.), 14 (Biscayne Blvd.), 15 (3"I) , 16 (2nd) , 31 (Flagler), and 34 (8I). 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 of the HBA for locutions where billboards wcre in fact banned, and there can be 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 1 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 be sufficient to undertake a closer scrutiny of the facts and an accurate assessment of the background to the proposal. uy, 1- INT° LIiVLL.L.# ; NEC RECORD FOR ITEM J--R1 ON olio William D Brillion Honorable Ananth Prasad July 8, 2013 Page 5 I Offsite outdoor advertising signs displayed on the walls of buildings have been referred to by various terms, such asflai signs, wall murals and wallscapes, and such signs displayed on freestanding sign structures have been referred to as douched 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 other 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 be 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 thc 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. I 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 thc 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, the government "permit fees" are for licensing speech and the scheme is patently unconstitutional. CUE" MIT Of INTO 7.7 FUBLIC RECORD FOR FEMFK ONp7lio I lonorable A nanth Prasad July 8, 2013 I'age 6 The following table addresses the photos submitted as part of the effort to secure your approval. Ex v/ E. lrihit Caption 1950's - Entryway from 1-395 into Downtown Miami. Signs located along Biscayne Bay and along fuel tanks. Facts Which Mav No ave Be Presented to You Miami City Ordinance No. 7338. at n. 7 (July 20. 1965) (cif. October 1. 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 within 600 feet of a limited access highway (such as 1-395) unless faced away from such highway. • All detached general advertising signs were Iimited to a size no greater than 750 square feet. Miami -Dade County Ordinance No. 63-26 (July 2. 1963) (eft'. 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 were allowed. • If more than 200 feet 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. Exhibi See above [The same photo as Exhibit D, but with arrows pourtwg to the detached signs facing Biscayne Bay and 1-395] See above. Summary: All of the billboards depicted lu Exhibit E were illegal or nonconforming siucc July 12, 1963 nud remained that way through January 27, 1972. "vii?","cG INTO C RECORD FOR FR3 OPJ_o7lmliy I Iunorablc Manth Prasad July 8, 2013 Page 7 ib xhibi 9 5 - Approximately al 1300 Biscayne Blvd. facing South. 1962 - Downtown iblIanni Courthouse to the left and industrial national Bank on Flagler Street Miami City Ordinance No. 7338 (July 20, I965) (eff. October 1, 1965): • All detached general advertising signs were Iimited to a size no greater than 750 square rect. • 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. Suurmary: All of the billboards depicted in Exhibit F were illegal or nonconforming since at least October 1, 1965 and remained that way through January 27, 1972. Miami City Ordinance No. 7338 (July 20, I965) (ct% 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 on this rooftop was either illegal or nonconforming ou or before October 1, 1965, and remained either illegal or nonconforming through January 27, 1972. At the time of the passage of the HBA, such a sign could not exceed 750 square feet. Exhibit 1969 - Miami Waterfront along Biscayne Blvd. (US I This photo appears to capture the Copper -toile advertisement that was placed an 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 customary, widespread and in common use at the time of passage of the HBA on October 22, 1965. TTED INTO THE RECORD FOR 5 I Ionorablc Aminth Prasad July 8, 2013 Page 8 bit No caption [Depiction of Copper -tune girl and dog in connection with placement of sign at ttew location, circa in 2008 This original sign was erected in 1959 at the north wall of the Parkleigh 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 al a sign company. The same year an exemption was utilized to allow this sign to he placed in December 2008 at 7300 Biscayne Boulevard (sec Historic and Environmental Preservation Board, LFID- 2008-0d). This sign would not comply with the ordinance without an exemption, which it qualified for. Miami City Ordinance No. 7338 (July 20, 1965) (efT. October 1, 1965); • Flat signs for general outdoor advertising in the C-4 District were constrained by the area requirements for owner identificntiou signs, and other limitations were included such ns one flat sign per building wall. Any flat signs that existed on October 1, 1965 that did not meet this size limitation would become nonconforming and subject to removal after 5 years, unless grained a variance or an exception. The exemption created for a historic sign does not support that the 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. xhibit K I950's - Newspaper article regarding Royal Castle on Biscayne Blvd. and Tenth Street. The photo refers to Royal Castles 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 I , 1965 and even if it was not a roof sign it would be subject to n 750 square foot size limitation. Nothing in this newspaper article supports the proposition that the customary size of outdoor advertising signs was greater than 750 square feet under the law in effect at the time of passage of the H23A. In fact, both of the signs featured in this newspaper,vyicle appear to have been onsite signs. ht: L.; NIO f RECORD FOR IE&L..ON0n1 f,,p (ILi I lonorable Ananth Prasad July 8, 2013 tgc9 kixltihit L 1940 - Single building with two murals located just oft' US- I. Note: This photo refers to mural ads on a building wall along VS-1 more than two decades before the passage oldie 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 tvI 1927 - The Miami Tribune newspaper building with a mural located on 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 under the City of Miami ordinance passed on July 20, 1965 and that became effective on October 1, 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 example), then the maximum size would have been less than 400 square feel. The 1927 photo of the Southern Dairies ad copy for The Velvet Kind Ice Cream can be found nt the following address: help:IIw w.floridnmemory.com/items/show/34024 Exhibit N 1946 - Franklin -Webster billboard for Miami -based Regal Beer painted by Burl Grey This is a photo ofa 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 llama This is a photo ofa 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 sigh by July 20, 1965 was not greater than 750 square feet. FUSLIC RECORD FOR ITEMrqQNo7/