MAVERICK MEDIA GROUP v. Dept. of Transp.
| Citation | 791 So.2d 491 |
| Decision Date | 26 June 2001 |
| Docket Number | No. 1D00-1195.,1D00-1195. |
| Parties | MAVERICK MEDIA GROUP, INC., Appellant, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee. |
| Court | Court of Appeal of Florida (US) |
Marsha G. Rydberg and Thomas H. Rydberg, Rydberg & Petitt, P. A., Tampa, for Appellant.
Pamela S. Leslie, General Counsel, Gregory G. Costas, Assistant General Counsel and Jodi B. Jennings, Assistant General Counsel, Florida Department of Transportation, Tallahassee, for Appellee.
Appellee State of Florida Department of Transportation (DOT) denied appellant Maverick Media Group, Inc.'s sign permit application because the proposed sign was too close to an existing Texaco sign. Maverick petitioned for a formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to challenge the denial of its sign permit application. DOT, in a final order, dismissed Maverick's petition and denied its application for a state sign permit, ruling that Maverick does not have standing for a formal administrative hearing because it fails to meet the third-party standing requirements of Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). Because we hold that the third-party standing requirements of Agrico are not applicable, and Maverick has standing pursuant to sections 479.08 and 120.52(12)(a), Florida Statutes (1999), to challenge DOT's denial of Maverick's sign permit, we reverse.
Section 479.07(9)(a)2, Florida Statutes (1999), states generally that a permit shall not be granted for any sign unless the sign is located at least one thousand feet from any other permitted sign on the same side of the highway. There is no dispute that a Texaco sign, permitted by DOT, is located less than one thousand feet from Maverick's proposed sign location. Accordingly, DOT denied Maverick's sign permit application.
However, Maverick, in its Second Amended Petition for Formal Administrative Hearing, makes numerous allegations against the validity of the Texaco sign permit. Citing Lamar Advertising Company v. Department of Transportation, 490 So.2d 1315 (Fla. 1st DCA 1986), review denied, 501 So.2d 1281 (Fla.1986), Maverick alleges that it has standing to challenge DOT's denial of its permit because a permit issued for a sign not in compliance with Chapter 479, Florida Statutes, cannot form the basis for denial of an application for a valid permit.
DOT improperly characterizes Maverick's petition as a "third party challenge" to the Texaco sign, relying on Agrico to deny standing to Maverick. In Agrico, the issue was not whether Agrico, whose permit had been denied, had standing for a hearing. Rather, the issue was whether Agrico's business competitors had standing to file petitions objecting to the issuance of Agrico's permits. The agency affirmed the hearing officer's ruling to allow the competitors' participation as parties, but the court reversed, stating that "Agrico's business competitors were erroneously granted standing to interfere in DER's permitting procedure." Id.
Maverick is in the same posture as Agrico, not Agrico's business competitors, because Maverick is appealing the denial of its own permit. The business competitors of Agrico improperly intervened in Agrico's permitting process. The competitors' own permits were not at issue in the case.
The standing requirements under Agrico were for the third-party business competitors of Agrico, who needed to demonstrate a "substantial interest in the outcome of the proceeding" pursuant to section 120.52(10)(b), Florida Statutes (1977)(same as § 120.52(12)(b), Fla. Stat. (1999)1). See Agrico, 406 So.2d at 481-82
().
Although Maverick alleges the Agrico standing requirements, they are not required because Maverick is a specifically named person whose substantial interests are being determined in the proceeding under section 120.52(12)(a), rather than section 120.52(12)(b). Section 479.08, Florida Statutes (1999), specifically provides such standing to Maverick, stating that "[a]ny person aggrieved by any action of the department in denying or revoking a permit under this chapter may, within 30 days after receipt of the notice, apply to the department for an administrative hearing pursuant to chapter 120."
DOT argues that Maverick is essentially bringing a private cause of action by attacking the validity of the Texaco sign, and therefore has no standing. Citing City of Sarasota v. Windom, 736 So.2d 741 (Fla. 2d DCA 1999), DOT states that "the most fundamental and fatal flaw in Maverick's position lies in the fact that it has no private cause of action to seek enforcement of the provisions of Chapter 479 against the holder of the Texaco sign permits." DOT's reliance on Windom is misplaced.
The court held in Windom that the plaintiffs lacked standing to challenge the city's placement of speed humps and tables on various city streets to reduce the volume and speed of traffic and to enhance pedestrian safety. The plaintiffs lived in different neighborhoods in the city and neither was required to travel on the affected streets. Id. The plaintiffs in Windom were not involved in any permitting process. The case is not applicable.
Maverick does not seek a private cause of action against the owner of the Texaco sign permit under Chapter 479 as asserted by DOT. Rather, Maverick seeks a statutorily provided remedy pursuant to sections 479.08 and 120.52(12)(a), Florida Statutes (1999).
Maverick has standing for a formal administrative hearing, as did Lamar Advertising Company in Lamar Advertising Co. v. Department of Transportation, 490 So.2d 1315 (Fla. 1st DCA 1986). Lamar Advertising applied for a sign permit with DOT for a location where a permitted sign already existed. The existing sign was permitted to National Advertising, who had leased the property. National Advertising's lease on the property terminated, which caused the permit to be in violation of section 479.13, Florida Statutes. Section 479.13, Florida Statutes, prohibited a permittee from maintaining a sign without written permission of the owner of the property on which the sign is located. Id. at 1317. A violation of section 479.13 would not result in an automatic termination of the permit, but a penalty could be imposed or a revocation proceeding initiated. Id. DOT denied Lamar Advertising's permit application because it viewed the National Advertising permit to have continued validity beyond the lease termination date. Id.
The court ruled against DOT, stating, "[o]nce a permit becomes invalid under Section 479.13, it no longer operates to encumber the land and cannot form the basis for denial of a valid permit." Id. at 1318 (emphasis added). The permit violated section 479.13 when the lease terminated, and was therefore invalid on that date. The court held that regardless of when DOT's permit cancellation proceedings were implemented or accomplished, the National Advertising permit ceased to exist as an impediment to Lamar Advertising's application on the date of invalidity. Id.
Lamar Advertising controls the outcome of this case. DOT argues in this case, just as it did in Lamar Advertising, that the permit for the Texaco sign cannot be considered invalid for purposes of Maverick's application, unless it is revoked through a separate proceeding with the owner of the Texaco sign permit as a party. Just as in Lamar Advertising, we hold that regardless of when DOT's permit cancellation proceedings would be implemented or accomplished, the Texaco permit ceases to exist as an impediment to Maverick's application on the date of invalidity.
This interpretation of Lamar Advertising is consistent with Maverick's compelling reasoning that its proposed lawful permit should not be barred because of an existing illegal sign. A proper, lawful applicant should not be punished for the unlawfulness of another. How DOT regulates the offending illegal sign is not the concern of Maverick, but it should not bar Maverick's lawful application from going forward.
DOT ruled in its final order that even if Maverick's allegations are taken as true,2 Maverick would not be able to obtain the relief it seeks. DOT, in its ruling, concluded that as a matter of law, (i) a permit containing false or misleading information is voidable and is not void ab initio, and (ii) a permit may not be revoked if the sign was erected in conformance with the law. We do not take issue with these statements of the law from cases of this Court by DOT, but we do not agree that it is apparent from the face of Maverick's Second Amended Petition that it will be barred from obtaining a permit.
Maverick does not only allege that there was false and misleading information in the Texaco sign permit application. Maverick also alleges that the Texaco sign is not on a site that may be permitted by the Department. Therefore, Maverick argues, the Texaco sign permit is void. See § 479.07(5)(a), Fla. Stat. (1999)("[i]f the permittee fails to erect a completed sign on the permitted site within 270 days after the date on which the permit was issued, the permit will be void"); § 479.07(6), Fla. Stat. (1999)("A permit is valid only for the location specified in the permit."). The application of these statutes would render the Texaco sign permit void, not merely voidable.
Maverick also alleges that the Texaco sign is illegal because it was not lawfully erected or maintained. See § 479.24(1), Fla. Stat. (1999)("A sign will lose its nonconforming status and become illegal at such time as it fails to be permitted or maintained in accordance with all applicable laws, rules, ordinances, or regulations other than the provision which makes it nonconforming."); § 479.01(14), Fla. Stat. (1999)(a "nonconforming sign" is a sign which was lawfully erected but does not comply with a law passed at...
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