A T T OR N E Y S AT l/,W

Ananth Prasad, P.E. Secretary Florida Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450

William D. Brinton

904.346 . 5537 \X'BrintoTl@rtbw.colll

July8,2013

1301 Iti-;erpbce BOl~CV"J.rd· Suite 1500 Jacksonville, Aorida J'l2fJ7

<)(}j . 398 . 3911 H 'liJl <)(}j. 396 . 0663 Fox www.rti1w.com

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 tllis letter. As you know, 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, I 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 Beautitication Act (HBA) adopted on October 22, 1965 and the State-Federal Agreement dated January 27, 1972. 1 I 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, FHW A, Florida Division. I believe that the FHWA Administrator, Victor Mendez, is generally aware of the subject matter of these agreements, but I sincerely doubt that he is aware of the details set forth in this letter. I will share the same with the FHWA Administrator and the FHW A Chief Counsel.

To be blunt, false representations have been made as to the CllslolI/WY size 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 tind these representations to be suspect, I urge you to order a re­examination of what is set forth in the agreements and in the exhibits to the agreements.2

Isolated photographs of illegal or noncor!lorll/ing billboards that existed in the City of Miami should be no basis for determining the cllslolllary size of outdoor advertising signs within the City of Miami between October 22,1965 and January 27,1972.

The agency should focus attention on (1) an accllrale history of outdoor advertising in the City of Miami 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 thl'Ough the effective date of the State­Federal Agreement signed on January 27,1972 (the "relevant period").

Honorable 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, COlli ilion and a general practice during that time period is a blatant falsehood.

The CllstOIllWY size of lawflll 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 FHW A and FDOT. The photographs incorporated into the thl'ee 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.3

T am shocked that anyone would promote these photographs as supp0l1 for the false claim that 10,000 square foot billboards were customary and in widespread use at 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 of a spreadsheet that identifies the locations of ex isting 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 balUling expressway billboards (note the full text of the 1963 ordinance is contained in the reported decision of E. B. Ellioll Adv. Co. v. iv/etropolilan Dade COllnly, 425 F.2d 1/41 (5th Cil'. 1970» ;

(b) that would be prohibited by Miami-Dade County 's July 2, 1963 ordinance that established a maximum size limit of 750 square feet for general outdoor adverti sing signs that were located within an area between 20 1 to 600 feet away from an interstate, freewa y, 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 6'om being erected, constructed, altered, maintained or relocated within 600 feet of the right-ot~way lines of any limited access highway, including expressways, unless such sign is tllced away from any such highway.

(d) that would exceed the maximum size set f0l1h in the city 's July 20, 1965 ordinance that limited general advet1ising signs, flat , to the C-4 District and adopted the size (area) limitations for owner-identilications signs.

I have rev iewed the controlling law, the spreadsheet, and other useful information. Tills includes copies of newspaper articles and editorials for the period from 1952 to 1972, which were recently obtained from archives by Miami residents and a UMlaw student. Those print material s provide

Honorable Ananth Prasad July 8, 2013 Page 3

insightful context 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 efforts 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 tOllgh law sponsored by Commissioner Harold Spaet's billboard commillee comes lip for pllblic hearing Jilly 2. Tt applies to all expressways, not jllstthose in the interstate system. The ordinance imposes 2oo-/00t billboard fi'ee strips on the e.\]Jressll'ays. For the next 400 feet, signs lI'ollld be limited in size and spacing and wOllld have to jhce the other way.

It's a good law. Comlllissioners shoilid repel the inevitable pressllres to forget abollt it.

On Wednesday, July 3, 1963, the Miami Herald reported on the passage of the ban on expressway billboards and stated:

E:l]Jressway billboards were banned Tllesday by the Metro Commission.

Bllt it will be five years be/ore those that are already lip have to come down.

The action callie in an 8-2 vote approving a long-pending ordinance regillating the lise 0/ olltdoor advertising signs. It callie over vigorolls protest fi'om the billboard and electric sign indllstries.

Commissioner Harold Spaet, chairman 0/ the Metro commillee that drCljied the ordinance, led the fight for passage. He said the measllre was a compromise.

On February 21 , 1965, a Miami Herald article cOlllmented on aspects of sign ordinance revisions uncleI' consideration, and noted that the county based the size of the sign on the Il'ontage of the property on which it is located.

In addition to keeping billboards alit a/some areas and dllring sllch elilsters 0/ signs /01' one bllsiness and those IIsed by service stations, the proposed city ordinance lI'ollld establish a mtio bet1l'eenll'all signs and the size o./walls; small bllilding, small sign.

Coml Gables also IIses the mtio system bllt more stringently. The cOllnty bases the size 0/ a sign on the fi'ontage o./the property on which it is located, mther than on the size a/the bllilding.

And so it was when the City passed a new sign ordinance on July 20, 1965, the size of nat signs used a formula tied to the building frontage. The same formula was also used to limit the size of flat signs when used for general advertising purposes in the C-4 District. A ban on expressway

Honorable Ananth Prasad July 8, 20 13 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-nine (29) llI ural billboards would be prohibited by the billboard bans adopted by Miami-Dade County in July 1963 and by the City of Miami in July 1965 . These bans would completely bar the mural billboards identified as Mural ##s 1,5,6,7,8,9, 10, II , 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 7'h Avenue and 444 NW 2nd Avenue.

In addi tion to these bal'll1ed locations, two (2) mural billboards, Mural ##s 4 and 13, would be subject to the 1963 ordinance's 750 square foot 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 ##s 2 (Biscayne Blvd.), 6 (Biscayne Blvd.), 14 (Biscayne Blvd.), 15 (3 rd) , 16 (2nd

), 31 (Flagler), and 34 (8 th). However,

these locations would have all been subject to the size limitations for fl at 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 fro m the 1965 ordinance with all of the Mural ##s, whether expressway or non­expressway. I believe that not one of the current billboard mural s izes will comport with the size constraints set forth in the 1965 ordinance fo r 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 o f the !-IBA for locations where billboards were in fact balUled, 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 restri ctions 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 exerci se, then T 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.

William D Brinton

Honorable Ananth Prasad July 8, 2013 Page 5

1 OtTsite outdoor advertising signs displayed on the walls of buildings have been referred to by various terms, such asf/at signs, lI'alllllllrals and \l'Clllscapes, and such signs displayed on freestanding sign structures have been refelTed to as detached signs, lIIonopoles and I-Beams. Such signs are either painted on building walls or flat surfaces, or are di splayed 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 conunonly referred to as billboards, without regard to the type of support structure.

2 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 State­Federal Agreement. The city' s current regulatory scheme for billboards on the 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 fi'o\l1 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 the benefit of monies, ranging fi'om $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 "pennit fees" are for licensing speech and the scheme is patently unconstitutional.

Honorable Ananth Prasad July 8,2013 Page 6

3 T he following table addresses the photos submitted as part of the effort to secure your approval.

Exhibit Exh ibit Caption Facts Which May Not I-lave Been Presented to You wi Photo Exhibit D 1950's - Entryway from Miami City Ordinance No. 7338, at p. 7 (July 20, 1965} (eff.

1-395 into Downtown October I, 1965): Miami . Signs located • Biscayne Bay, the Miami River, and the Miami Canal were along Biscayne Bay des ignated Scenic Waterways. General advertising signs and along fuel tanks. were prohibited from being withi n 200 feet of the officia l

harbor line or existing bank. • General advertising signs were prohibited from being within 600 feet of a limited access hi ghway (suc h as 1-395) unless faced away from such hi ghway. • All detached general advert ising s igns were limited to a size no greater than 750 square feet.

Miami-Dade County Ordinance No. 63-26 (July 2, 1963} (eff. July 12, 1963} • All general advertising signs were ba nned within 600 feet ofl -395 if oriented to the interstate. A five year amortization period was establ ished for their removal. No vari ances or exceptions were allowed. • If more than 200 feet 1i-0I11 1-395 and oriented to another roadway, the size was restricted to a maximum of750 square feet.

Summary: All of the billboards depicted in E xhibit D were illega l or nonconforming since Jnly 12, 1963 and remained illegal 01' nonconforming thO'Ough January 27, 1972.

Exhibit E See above See above. [The same photo as Exh ibit 0 , but with arrows Summary: pointing to the detached All of the billboards depicted in Exhibit E were illegal or signs facing Biscayne Bay nonconforming since July 12, 1963 and remained that and 1-395] way through January 27, 1972.

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Exhibit F 1955 - Approximately at 1300 Biscayne Blvd. facing South.

ExJlibit G 1962 - Downtown Miami COlllihouse to the left and Industrial national Bank on Flagler Street

Exhibit I 1969 - Miami Waterfront along Biscayne Blvd. (US I)

Miami CiD' Ordinance No. 7338 Uul)' 20, 1965) (eff. October I. 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. • 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 nat sign per building wall.

Summary: All of the billboards depicted in Exhibit F were illegal or nonconforming since at Icast October 1, 1965 and "emaincd that way through January 27,1972.

Miami City Ordinance No. 733 8 Uul)' 20, 1965) (eff. October I, 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.

SUlllnla'1': The detached gcneral advertising sign on this rooftop was either illegal or nonconforming on or befo"e October 1, 1965, and remained eithcr illegal or nonconfol'lning throngh Jannary 27, 1972. At the time of thc passage of the HBA, such a sign cOllld not exceed 750 sq",lI'e feet.

This photo appears to capture the Coppe.1one adverti sement that was placed on the nOl1h wall of the Parkleigh House in 1959. This iconic sign has a IInique hi stOlY 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 ClISt011131)', widespread and in COllllllon lise at the time of passage of the HBA on October 22, 1965 .

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Exhibit J No caption [Depiction of Coppertone girl and dog in connection with placement of sign at new location , circa in 2008]

Exhib it K 1950's - Newspaper article regarding Royal Cast le on Biscayne Blvd. and Tenth Street.

This original sign was erected in 1959 at the nOJ1h wa ll of the Parkleigh House at 530 Biscayne Boulevard . In 1991 , it was moved to a warehouse. In 1995 it was mounted on the east wa ll of the Concord Building at 66 W. Flagler Street. In 2008, it was removed again and stored at a sign company. The same year an exemption was utilized to allow this sign to be placed in December 2008 at 7300 Biscayne Boulevard (see Historic and Environmental Preservation Board, LI-ID-2008-04). This sign would not comply with the ordinance without an exem ption, which it qualified for.

Miami City Ordinance No. 7338 (July 20, 1965) (eff. October I, 1965): • Flat signs for general outdoor advertis ing in the C-4 District were constrained by the area requ irements for owner identification s igns, and other limitations were inc luded such as one flat sign per bui lding wa ll. Any flat sig1ls that existed on October I, 1965 that did not meet this s ize limitation would become nonconforming and subject to removal after 5 years, unless granted a variance OJ' an exception. The exemption created for a historic sign does not support that the notion that this sign was representative of what would be a llowed for size at the time of the passage of the I-IBA on October 22, 1965 .

The photo refers to Royal Castle ' s home office at Biscayne B lvd. and Tenth Street. There was an ons ite roof s ign for Royal Castle at this location, and roof signs became nonconforming on October I, 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 s ign it would be subject to a 750 square foot size limitation . Nothi ng in this newspaper article supports the propos iti on that the customary size of outdoor advertising signs was greatcr than 750 square feet under the law in effect at the time of passage of the I-IBA. In fact, both of the signs featured in this newspaper article appear to have been onsite signs.

Honorable Ananth Prasad July 8, 2013 Page 9

Exllibit L 1940 - Single building with two murals located just off US-\.

Exhi bit M 1927 - The Miami Tribune newspaper building with a mural located 0 11 the same. s ide of the bu ilding.

Exll ibit N 1946 - Franklin-Webster billboard for Miami-based Rega l Beer painted by Burl Grey

Ex hibit 0 1955 - National Airlines billboard in Miami advertising new DC-7 Star servi ce to New York, Washington and Havana

Note: This photo refers to mural ads on a building wall a long US-I more than two decades before the passage of the HBA. This photo was taken long before ordinances were adopted in the 1950s and 1960s to address the proliferation of outdoor advelti sing 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 I , 1965, and the answer seems to be a clear no - given the multiple constraints placed upon fl at s igns used as general advertising signs.

The very title of this photo exllibit estab lishes that this pre-World War II adveltisement would have been illegal under the City of Miami ordinance passed on July 20, 1965 and that became effecti ve on October I , 1965. A flat s ign used as a genera l advertising sign could not be placed on a building wall if there was any other sign there . Furthermore, the s ign s ize 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 feet. The 1927 photo of the Southern Dairies ad copy fo r Tlte Velvet Killd Ice Crealll can be found at the fo llowing address: ht tp://www. fl oridamemOly.com/ i tems/show/3 4024

T his is a photo of a detached genera l advertising s ign (bi llboard). 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 s ize for such a s ign by July 20, 1965 was not greater than 750 square feet.

Thi s is a photo of a detached genera l advertis ing 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 s ize for such a sign by July 20, 1965 was not greater than 750 square feet.