National Advertising Co. v. City of Miami

• Decision Date: 26 September 2003
• Docket Number: No. 02-20556-CIV.<SMALL><SUP>*</SUP></SMALL>,02-20556-CIV.<SMALL><SUP>*</SUP></SMALL&gt
• Parties: NATIONAL ADVERTISING COMPANY, Plaintiff, v. CITY OF MIAMI, Defendant.
• Court: U.S. District Court — Southern District of Florida

288 F.Supp.2d 1282

NATIONAL ADVERTISING COMPANY, Plaintiff, v. CITY OF MIAMI, Defendant.

No. 02-20556-CIV.^*

United States District Court, S.D. Florida, Miami Division.

September 26, 2003.

Thomas R. Julin, Esq., Hunton & Williams, Miami, FL, for Plaintiff.

Carol A. Licko, Esq., Hogan & Hartson, LLP, Miami, FL, for Defendant.

MEMORANDUM OPINION GRANTING SUMMARY JUDGMENT

KING, District Judge.

National Advertising Company, mistakenly believing that the permitting experts they employ to apply for billboard permits, had laid the essential predicate to enable their lawyers to file a constitutional challenge to the City of Miami Zoning Ordinance, filed this suit on February 21, 2002 In National's rush to the courthouse, they neglected to obtain a denial of the six permit applications they had partially processed through the City of Miami Building and Zoning Department. Waiting only to hear from a zoning clerk "he said for my future benefit, signs are not allowed in the C-1 zone. If it had been in the C-2 zone, the applications we submitted were for signs that were too tall for that zone."¹ After receiving this rejection by the intake clerk during the walk through of the permit applications on January 8, 2001, National, without attempting to present the matter to the Building Official for consideration, or obtaining the written denial from the Building Official, went to their lawyer's office to commence premature preparation of this lawsuit.² This rush to the courthouse without making any effort to present the matter to the Building Official for approval or denial, and failing to get from the Building Official a final denial of the six building permit applications, constituted a fatal error mandating denial of the relief National here seeks. By treating a routine rejection by a zoning clerk of the billboard height, together with taking the clerk's volunteered words of advise for the future submission of the sign permit applications as a denial, National has failed in a very substantial and critical manner, to follow the law and thus is precluded from raising any constitutional issue or proceeding with any lawsuit without first meeting the basic requirement of a denial of a permit. Moreover, even if this Court were to address National's arguments on the merits, this Court has already upheld the constitutionality of the Zoning Ordinance in its Memorandum Opinion Granting Summary Judgment for the City, entered in National I, National Adver. Co. v. City of Miami, 287 F.Supp.2d 1349, 2003 WL 22455323 (S.D.Fla.2003).

I. Factual Background

Plaintiff National Advertising Company is a Delaware corporation and a wholly owned subsidiary of Viacom Outdoor Inc., a corporation formerly known as Infinity Outdoor, Inc. National is in the business of erecting and maintaining billboard signs on property it leases. According to its own statements, National maintains both commercial and noncommercial messages on billboards that are located throughout the City of Miami.

On March 8, 1990, pursuant to section 166.011 et seq., Florida Statutes and Sections 3(4), 14, & 72 of its City Charter, Defendant City of Miami adopted Ordinance No. 1,000 (the "Zoning Ordinance") that divided the City into 24 geographical areas and specified regulations applicable to property located within each area. National alleges that the Zoning Ordinance changed the City's zoning classifications and reclassified certain zones as Restricted Commercial ("C-1"). According to National, these reclassified zones had the effect of making "some or all of the offsite signs in the effected zones nonconforming with the Zoning Ordinance."³ On or about March 28, 1991, pursuant to Ordinance No. 10863, the City adopted section 107.2.2(a) of the Zoning Ordinance, which provides as follows:

In any district other than residential, any sign, billboard, or commercial advertising structure which constitutes a nonconforming characteristic of use may be continued, provided no structural alterations are made thereto subject to the following limitations on such continuance: (a) Any such sign except a roof sign shall be completely removed from the premises within five (5) years from the date it became nonconforming.

The Zoning Ordinance further provides that "[n]onconforming characteristics of use shall be construed as including those where the nonconformity was created by ordinance adoption or amendment, as provided at section 1101.1, as well as those where nonconformity was created by public taking or court order, as provided at section 1101.2." (Zoning Ord., § 1107 at 424.)

In December 2001, National applied for six sign permits with the City of Miami's Building and Zoning Department.⁴ Miguel Gutierrez, Chief of Inspector Services for the City of Miami Building Department, testified on August 28, 2002, and explained the process to obtain a building permit within the City of Miami as follows:

You come in with an application. You go to the permit counter. They review the application, the licenses of the qualifier, the address, all the pertinent information. They issue you a plan number, a process number. With that process number, if it's going to be a walk through permit, you go to the walk through desk. You sign in there. You wait for all the reviewers to call you. You go see a reviewer that is needed for that particular job. After you get all the approvals you come back to the permit counter. You are issued a permit number. You go to the cashier and you pay and then you have a permit.

(Tr. of Prelim. Inj. Hr'g at 63:19-64:4, 08/28/02.) The following month, National filed for an additional seventh permit on a property located in a C-2 zone. That application was granted on March 5, 2002.

Jose L. Ferras, the Building Official for the City of Miami, testified about the walk through process as follows:

When an applicant comes through the City of Miami, depending on the particular job code, ... their application would be reviewed by different departments. In the particular case of the sign applications or the sign permit, we have an electrical department that reviews for the electrical requirements. We have a historical department that reviews for the historical requirements. We have a public works department that reviews for the public works requirements, structural, which is my department, reviews for the structural requirements, and then sign, which is zoning, that reviews for the zoning requirement.

(Id. at 28:3-13.) Ferras then explained the grievance process available to the applicant in the event an applicant disagrees with the recommendation of any department:

A. When a rejection occurs on one or multiple departments, the rejection description or notice is given back to the applicant for them to go ahead and correct the items that are improperly submitted or not accepted by the departments.

* * * * * *

A. If the applicant disagrees with one of the rejections of a department, normally they go and address it directly with the department head administrator or director, and try to solve their problems at that level. If they don't, then they would possibly submit their dispute in writing to me.

Q. As Building Official?

A. As Building Official.

Q. If the applicant did submit the dispute in writing to you as Building Official, what would happen?

A. If they disagreed with a department and they felt that they were right or had a valid point, I would then try to get the departments together and try to mitigate or resolve this problem at a local level.

Q. And if you could not resolve it at a local level, what would be the next step, if any?

A. The next step from then would be that they possibly take me to the Board of Rules and Appeal to appeal my decision.

(Tr. of Prelim. Inj. Hr'g at 28:21-24, 29:3-19, 10/28/02.)

Finally, on direct examination, Ferras testified that in his capacity as Building Official, he has the ultimate authority to deny or grant a permit:

Q. As the Building Official, do you have the final and exclusive authority to deny a building permit application?

A. I do.

Q. Can the zoning department deny an application for a building permit?

A. The zoning department can reject an application, but they have no authority, under my permit building application, to deny the application.

Q. This would be true for the other departments within the City of Miami as well, for instance, Public Works?

A. That's correct.

(Tr. of Prelim. Inj. Hr'g at 23:14-24, 10/28/02.) Similarly, Gaston Cajina, the zoning inspector who reviewed National's applications, testified as follows:

Q. As zoning inspector do you have authority to deny a building permit?

A. No.

Q. As zoning inspector do you have the authority to grant a building permit?

A. No.

Q. Who has the authority to grant a building permit?

A. The Building Official.

Q. Does the Building Official also have the authority to deny a building permit?

A. Yes, it does.

Q. Is he the only person within the City of Miami who can deny a building permit?

A. That's correct.

(Tr. of Prelim. Inj. Hr'g at 70:24-71:12, 08/28/02.)

In its Complaint, Plaintiff alleges that on January 8, 2002, after walking through the six applications filed in December 2001, they were "denied" orally by the zoning clerk to whom the applications had been submitted. The lawyers have used the terms "rejection" and "denial" interchangeably. In its January 9, 2003, Order Denying Plaintiff's Motion for Preliminary Injunction, this court held that "[h]ere, the record shows National's six building permits were not denied by the only person who had legal authority to deny them—the Building Official." The Eleventh Circuit affirmed this Order on September 22, 2003. Thus, for purposes of this opinion, this Court finds that the zoning inspector, as per the testimony of the Building Official, has the authority to "reject" an application that can subsequently be resubmitted. The zoning inspector, however, does not have the authority to "deny" an...