Cafe Erotica v. Florida Dept. of Transp.

• Decision Date: 23 October 2002
• Docket Number: No. 1D01-4331.,1D01-4331.
• Citation: 830 So.2d 181
• Parties: CAFE EROTICA/We Dare to Bare, etc., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

830 So.2d 181

CAFE EROTICA/We Dare to Bare, etc., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 1D01-4331.

District Court of Appeal of Florida, First District.

October 23, 2002.

Rehearing Denied November 15, 2002.

Gary S. Edinger, Esq., Gainesville, for Appellant.

Pamela S. Leslie, General Counsel; Richard A. Weis, Assistant General Counsel, Tallahassee, for Appellee.

LEWIS, J.

Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., appellant, challenges the Department of Transportation's Final Order which concluded that appellant's billboard was not located on the premises of a business and, therefore, required a sign permit pursuant to section 479.07, Florida Statutes (2001). Appellant also argues for the first time on appeal that sections 479.07 and 479.08, Florida Statutes (2001), as well as Florida Administrative Code Rules 14-10.004 and 14-10.006, impose a facially unconstitutional prior restraint on speech in violation of the First Amendment of the United States Constitution. We affirm the agency's Final Order without further discussion. For the reasons discussed below, we hold that sections 479.07 and 479.08 and rules 14-10.004 and 14-10.006 do not impose an impermissible prior restraint on speech.

The Department of Transportation issued a notice of violation against appellant for failure to obtain a permit to maintain an outdoor advertising sign located near Interstate 95, exit 93 in St. Johns County. Appellant requested a formal hearing, arguing that its sign was exempted from the permitting statutes as an on-premises business sign. After the formal hearing, the Administrative Law Judge issued a Recommended Order, finding that appellant failed to demonstrate an entitlement to the on-premises exemption. In its Final Order, the agency adopted the Administrative Law Judge's Recommended Order and directed appellant to remove the outdoor advertising sign. This appeal followed.

Appellant argues that sections 479.07 and 479.08 and rules 14-10.004 and 14-10.006 impose a facially unconstitutional prior restraint on speech. Such a constitutional challenge may be raised for the first time on appeal. See Key Haven Associated Enter., Inc. v. Bd. of Trs., 427 So.2d 153, 157 (Fla.1982)

; Gulf Pines Mem'l Park, Inc. v. Oaklawn Mem'l Park, Inc., 361 So.2d 695, 699 (Fla.1978) (holding that a party is not required to argue the facial constitutionality of a statute before the administrative agency because the agency lacks the power to declare a statute unconstitutional); Rice v. Dep't of Health and Rehabilitative Servs., 386 So.2d 844, 848 (Fla. 1st DCA 1980).

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment guarantee of free speech applies to the states under the Fourteenth Amendment. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000)

; Dep't of Educ. v. Lewis, 416 So.2d 455, 461 (Fla.1982). Freedom of speech is also guaranteed under Article I, Section 4 of the Florida Constitution: "Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." The scope of the Florida Constitution's protection of freedom of speech is the same as required under the First Amendment. See Lewis, 416 So.2d at 461. Thus, this Court applies the principles of freedom of speech as announced in the decisions of the Supreme Court of the United States. See id.

The starting point in any analysis of the regulation of speech is whether the regulation is content-based or content-neutral. See City of Ladue v. Gilleo, 512 U.S. 43, 58, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (O'Connor, J., concurring)

. A regulation of speech which distinguishes favored speech from disfavored speech on the basis of ideas or viewpoints is generally content-based. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In contrast, a regulation which imposes a burden on speech without reference to the ideas or viewpoints expressed in the speech is, in a majority of instances, content-neutral. See id.

Except for exemptions under sections 479.105(1)(e)¹ and 479.16, Florida Statutes (2001), section 479.07(1), Florida Statutes (2001), requires a permit before erecting any sign on the State Highway System, of which Interstate 95 is a part. To obtain a permit, an applicant must submit, for each permit requested: 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.

§ 479.07(3)(a), (b), Fla. Stat. (2001). Section 479.16 provides the following exceptions to the permitting scheme:

(1) Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which comply with the lighting restrictions under department rule adopted pursuant to s. 479.11(5), or signs owned by a municipality or a county located on the premises of such municipality or such county which display information regarding government services, activities, events, or entertainment. For purposes of this section, the following types of messages shall not be considered information regarding government services, activities, events, or entertainment:

(a) Messages which specifically reference any commercial enterprise.

(b) Messages which reference a commercial sponsor of any event.

(c) Personal messages.

(d) Political campaign messages.

If a sign located on the premises of an establishment consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection.

(2) Signs erected, used, or maintained on a farm by the owner or lessee of such farm and relating solely to farm produce, merchandise, service, or entertainment sold, produced, manufactured, or furnished on such farm.

(3) Signs posted or displayed on real property by the owner or by the authority of the owner, stating that the real property is for sale or rent. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.

(4) Official notices or advertisements posted or displayed on private property by or under the direction of any public or court officer in the performance of her or his official or directed duties, or by trustees under deeds of trust or deeds of assignment or other similar instruments.

(5) Danger or precautionary signs relating to the premises on which they are located; forest fire warning signs erected under the authority of the Division of Forestry of the Department of Agriculture and Consumer Services; and signs, notices, or symbols erected by the United States Government under the direction of the United States Forestry Service.

(6) Notices of any railroad, bridge, ferry, or other transportation or transmission company necessary for the direction or safety of the public.

(7) Signs, notices, or symbols for the information of aviators as to location, directions, and landings and conditions affecting safety in aviation erected or authorized by the department.

(8) Signs or notices erected or maintained upon property stating only the name of the owner, lessee, or occupant of the premises and not exceeding eight square feet in area.

(9) Historical markers erected by duly constituted and authorized public authorities.

(10) Official traffic control signs and markers erected, caused to be erected, or approved by the department.

(11) Signs erected upon property warning the public against hunting and fishing or trespassing thereon.

(12) Signs not in excess of eight square feet that are owned by and relate to the facilities and activities of churches, civic organizations, fraternal organizations, charitable organizations, or units or agencies of government.

(13) Except that signs placed on benches, transit shelters, and waste receptacles as provided for in s. 337.408 are exempt from all provisions of this chapter.

(14) Signs relating exclusively to political campaigns.

(15) Signs not in excess of sixteen square feet placed at a road junction with the State Highway System denoting only the distance or direction of a residence or farm operation, or, in a rural area where a hardship is created because a small business is not visible from the road junction with the State Highway System, one sign not in excess of sixteen square feet, denoting only the name of the business and the distance and direction to the business. The small-business-sign provision of this subsection does not apply to charter counties and may not be implemented if the Federal Government notifies the department that implementation will adversely affect the allocation of federal funds to the department.

In addition to section 479.07, Florida Administrative Code Rule 14-10.004 outlines the procedures for a permit application and...