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HomeMy WebLinkAboutSubmittal-Doug Roberts-LetterJanuary 24, 2024 Honorable Mayor Francis Suarez Honorable Commissioner Miguel Gabela Honorable Commissioner Damian Pardo Honorable Commissioner Joe Carollo Honorable Commissioner Manolo Reyes Honorable Chairwoman Christine King Re: FR. 1 - Digital Free Standing Signs Dear Honorable Mayor and Commissioners: LSN LAWP.A Submitted into the public record or item(s) , . on 'L(' I Lt City Clerk An Illegal Advertising Sign by any other name is still an Illegal Advertising Sign. On behalf of Outfront Media, we respectfully urge the City Commission to amend or rescind Ordinance No. 14128 (`the 2023 Ordinance") to eliminate the concept of "Digital Free Standing Signs," a concept being used to construct illegal outdoor advertising signs and placing the City and State in legal and financial peril. Last year, the City Commission approved the 2023 Ordinance authorizing, among other things, the construction of 100-foot tall, 1,800 square foot "Digital Free Standing Signs" at four locations: (i) Bayfront Park; (ii) Maurice Ferre Park; (iii) Adrienne Arsht Center; and (iv) Perez Museum of Art Miami (PAMM). The concept of Digital Free Standing Signs is a uniquely Miami invention. It does not exist anywhere in Florida. Recognizing that Digital Free Standing Signs would violate state law if used for general advertising purposes, the 2023 Ordinance contemplated that Digital Free Standing Signs would be used exclusively for "on premise" advertising — advertising that relates directly to the principal business activity taking place on the property. The 2023 Ordinance recognized that if Digital Free Standing Signs were used for general advertising purposes, they would be required to comply with all state and federal requirements regarding size, spacing, and height of outdoor commercial advertising structures. See Section 2-779(b) of the 2023 Ordinance ("Freestanding digital signs meeting the definition of an outdoor advertising sign shall be limited to those size and locational restrictions as required by Chapter 479, Florida Statutes, if applicable."). Following the passage of the 2023 Ordinance, a company called Orange Barrel Media submitted applications to FDOT for the construction of Digital Free Standing Signs at the Adrienne Arsht Center and PAMM. FDOT immediately denied these applications, noting that the proposed structures failed to comply with the size, spacing, and height requirements for outdoor commercial advertising structures. Specifically, FDOT noted that the proposed structures exceeded the maximum height (65 feet) and maximum size (950 square feet) for outdoor advertising structures and failed to comply with statutory spacing requirements, which prohibit new advertising structures within 1,500 feet of existing structures on the same side of the highway. See Section 479.07(9)(b), Florida Statutes. 15'i 16 Su\)\v\%\ -Davy Submitted into the publtp record f r itrm s) on I City Clerk Undeterred, Orange Barrel went directly to the City of Miami and applied for building permits to construct the very same Digital Free Standing Signs rejected by FDOT a few months earlier. Orange Barrel claimed the structures were exempt from statutory requirements because they were "on -premises" signs. Under state law, signs are exempt from FDOT permitting requirements — as well as size, spacing, and height requirements — if they are "on premises" signs designed primarily to display "the name of the establishment or identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment." See Section 479.16(1), Florida Statutes. However, state law provides that signs are not exempt as "on -premises" signs if they: (i) principally display advertisements for brands or services that are '`only incidental to the principal activity" taking place on the property; or (ii) generate rental income for the owner of the property. See id. Orange Barrel's proposed signs at the Arsht Center and PAMM are not "on - premises" signs. They are supersized, illegal, general advertising signs. First, as confirmed on Orange Barrel's website, the PAMM Sign is not intended to display the name of the establishment or the products sold therein. It is primarily intended to display advertisements for national brands like Christian Dior, Yves Saint Laurent, Bottega Veneta, HBO Max, and Barbie — brands whose products are, at best, incidental to the operation of an art museum. Below are several screenshots from a promotional video on Orange Barrel's website marketing the PAMM Sign to national advertisers: Christian Dior Yves Saint Laurent Bottega Veneta HBO MAX Submitted into the public record fpp(r� em,� (s) F on 7. LQ1U1r.• City Clerk It It' Second, representatives from both PAMM and Arsht Center have publicly stated that they intend to generate millions of dollars of rental income from the proposed signs. PAMM representatives recently stated in a letter to Commissioners that the PAMM sign is "anticipated to bring seven figure guaranteed revenue annually to PAMM" Arsht Center representatives similarly stated in a letter to Commissioners that the proposed sign at the Arsht Center represents "an anticipated guaranteed revenue stream that is important to the financial sustainability of our organization" and adding that "kJ his revenue is extremely important." Submitted into the public record r it m(s) , �. on City Clerk Because the proposed signs at the Arsht Center and PAMM fail both prongs of the statutory test for "on -premises" signs, they are plainly illegal. See Section 479.16(1); see also Malibu Lodging Investments vs. Department of Transportation, DOAH Case No. 09- 1524 (Recommended Order August 25, 2009) (finding that mural advertisements for Vitamin Water and Volkswagen Automobiles displayed on the exterior wall of a hotel were not '`on premises" advertisements even though both products were occasionally available for sale on the hotel property and/or adjacent property; specifically finding that "Volkswagen automobiles and Vitamin Water are neither principal nor accessory products or services 'sold, produced, manufactured, or furnished' on the premises of the City Inn Hotel but are, at best. products incidental to the principal business activity of these companies"; further finding that, even if the advertised products were principal or accessory products sold at the property, "there would be no entitlement to an 'on premises' exemption inasmuch as the evidentiary record affirmatively establishes that Petitioner, the Hotel owner. 'receives rental income from the [Mural]."'); see also Department of Transportation v. Florida Roadmaster Inn Services Corp., DOAH Case No. 91-4785T (Recommended Order March 24, 1992) ("Although not a model of clarity. the statute basically provides that a sign erected on the premises of an establishment must relate to the activities being conducted on the premises. In other words, the sign (and its message) must be an integral part of a business being conducted on the land " ); see also Eller Media Company v Department of Transportation, DOAH Case No. 00-1521T (Recommended Order March 23, 2001) ("The record is devoid of any evidence that, in the office space behind the door on which Ms. Cann observed the paper "Perry Ellis/Supreme International. Incorporated" signs, or, for that matter. anywhere else in the Building, there is any meaningful business activity relating to the brand name fashion apparel advertised on the wallscape."'). To be clear, Arsht Center and PAMM are important community assets and deserve financial support. But state law does not exempt cultural institutions from following outdoor advertising regulations. Indeed, both the City and State are required to enforce outdoor advertising regulations or risk losing millions of dollars in federal highway funding. Accordingly, the City may not issue permits for the construction of general outdoor advertising signs that plainly violate size, spacing, and height requirements. And the City must amend or rescind local legislation being used by third parties to violate the law, placing the City and State in a precarious position. Sincerely, Michael Llorente. Esq. Cc: Mr. Arthur Noriega V, City Manager Mr. Zerry Ihekwaba, Deputy City Manager Mrs. Victoria Mendez, City Attorney