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Two Roads, One Billboard And A Miami Legal Battle On The Word “On”

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Kenny Malone
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About 30 years ago, Hancock Advertising, Inc., was awarded eight of the first 10 permits to put billboards on the City of Miami’s highways. Seven of those billboards went up on Interstate 95. It would take a two-year legal battle over the word “on” to determine whether or not the eighth sign was also on I-95.

“We’re an [State Road] 836 sign,” says Andy Hancock, standing below a towering billboard next to the Camillus House on the edge of Overtown. The billboard, now owned by Clear Channel, stands on the northwestern side of the I-95/836 interchange. One side touts Resorts World Bimini. The other: Geico.

In 1965, Dade County banned billboards on the highway. Hancock Advertising lobbied for years to get them back. In the 80s, the company leased about 20 locations in hopes the City of Miami would come around.

When the city voted to allow 10 permits in 1985, Hancock was awarded eight, including one permit for this location.

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Credit Kenny Malone
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Andy Hancock can’t remember what sign was up 30 years ago, but he certainly remembers the permitting ordeal.

“I have a saying: Life’s a permit, then you die,” he says. 

The billboard structure juts out so that drivers on the Dolphin Expressway face the signs head-on. In other words, the billboard is aimed at Dolphin traffic. And that’s what Hancock Advertising told the Florida Department of Transportation 30 years ago.

“But when the sign was erected the Department of Transportation noticed that it was visible from Interstate 95,” says Tom Bateman, FDOT’s general counsel in the late 80s.

The way the law was written, a billboard “on” I-95 fell under a stricter set of permitting guidelines. In fact, FDOT would not have permitted this particular billboard because it was too close to another of Hancock’s I-95 signs.

Bateman, now with law firm Messer Caparello P.A., says FDOT ordered the sign removed. (A roughly $150,000 investment by today’s standards, according to Hancock.)

Thus began the two-year legal battle that boiled down to this: Is being visible from I-95 the same as being “on” I-95?

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Credit Florida's Third District Court of Appeals
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Judge Alan Schwartz

JUDGE SCHWARTZ RULES

The decision was initially upheld before landing in Florida’s Third District Court of Appeals, where Judge Alan Schwartz -- now retired -- wrote the majority opinion.

“I think it’s a good opinion,” Schwartz says, “it happens to be a good opinion on a meaningless issue.”


[Reporter’s note: As you might be able to tell, Judge Schwartz was not convinced his “on” case was worth doing a story about. At one point during our interview he says, “excuse the expression, we’re going on and on on the issue of ‘on’ and it’s really just -- on is on!” These written words, they cannot possibly convey how wonderful Schwartz’s quotes actually are. We’re including an audio montage of the best of Judge Schwartz. The self-deprecation, the skepticism. Give a listen. We’ve included every quote from the story and more.]

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Listen to the Judge Alan Schwartz montage here.

The Schwartz opinion is basically two pages looking at what it means to be "on" the highway. The issue, Schwartz wrote, “depends entirely on whether [the billboard] is ‘on’ I-95 as opposed, it follows, to being on SR-836... Since there is no statutory definition of the word ‘on,’ we must exercise our judicial responsibility to resolve the issue ourselves.”

He writes that “on” is a “deceptively simple” word.

He consults the American Heritage Dictionary’s definition. “It goes on for pages,” he now admits, “and frankly I couldn’t get myself to read all of them.”

He brings the decision into focus using a pair of pictures “drawn by a person with a third grade ability to do so,” says Schwartz. “Namely me.”
 

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A drawing Judge Schwartz included in his 1989 opinion.

The first (pictured above) shows more or less the way the “billboard in dispute” sits at the intersection of I-95 and the Dolphin Expressway.

Because there is no legislative definition, Schwartz was working towards giving “on” its “ordinary and commonly accepted meaning as it is used in the particular context.” Instead of a billboard and I-95 and 836, he imagined, what if the situation were a house on two different roads? What if this case were about the “building” pictured below? Schwartz wrote, “no one would question that the structure is ‘on’ the street.”

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The court ruled in favor of Hancock Advertising Inc., holding that the billboard was on the Dolphin Expressway and not on I-95. Which is why the billboard is still there today.

“This is an indication of how lawyers and judges make a big deal out of nothing,” Schwartz says. “What seems to be nothing,” he adds.

AN HISTORIC BILLBOARD... KIND OF

Hancock Advertising Inc. versus the Department of Transportation will never be known as a Roe v. Wade or Brown v. Board of Education. But the Judge Schwartz opinion did arguably have an impact.

Johnny Burris is a law professor at Nova Southeastern University and wrote about the Hancock case -- the “on” case -- in a 1989 law review article.

“The norm is, by the statute, is that judges are supposed to give deference to the agency’s interpretation,” says Burris, an expert in administrative law.

Typically, Florida courts would defer to FDOT on how it wants to interpret its own rules. But in this case, Judge Schwartz didn’t. In essence saying: If what you meant by “on the highway” was “visible from or adjacent to” the highway, then say that.

“And that’s what the legislature did a few years later,” says Burris. In 1991 the language for FDOT’s billboard permitting rules changed. “On” the highway, it clarified, does mean “visible from.”

“By making that change,” Burris explains, “they’re sweeping in all these signs that, may have been under the Hancock decision, characterized as ‘adjacent’ but not ‘on.’”

When asked if he was proud to have contributed a definition of “on” to the legal world, Judge Schwartz replied, “I don’t pat myself on the back every third Thursday.” Conceding eventually, “I’m proud of good opinions.”