Days after the city of Miami Beach filed a similar case, Fort Lauderdale has challenged the legality of directives by the Florida Department of Transportation to remove art and markings on streets.
Fort Lauderdale filed its challenge Monday at the state Division of Administrative Hearings, arguing that the department did not go through a legally required rule-making process. Such directives went to local governments across the state and have drawn heavy attention, in part, because they required removing LGBTQ-themed rainbow crosswalks.
The department issued a memorandum on June 30 about removing markings and followed with letters Aug. 21 and Aug. 29 to Fort Lauderdale alleging violations at 11 locations, according to documents included in Monday’s filing.
The challenge contends that the memorandum and letters constituted rules under state law and that the department needed to go through a formal process to adopt them. Rulemaking processes, for example, likely would include steps such as opening the issues for public comment.
“Memorandum 25-01 (the June 30 memorandum) goes beyond mere interpretive guidance of applicable regulations and statutes,” Fort Lauderdale’s attorneys wrote. “Rather, it decrees specific design features non-compliant, directs their removal and mandates enforcement by district offices. It further authorizes the department to withhold state funds or directly remove installations if local governments fail to comply. In so doing, the memorandum imposes obligations and levies penalties not otherwise found in statute or rule, thereby altering the legal rights and responsibilities known to local governments.”
The challenge also said municipalities throughout the state received letters similar to the Fort Lauderdale letters.
“These letters relied on Memorandum 25-01 as their operative basis, directed immediate removal of supposedly non-compliant pavement markings and imposed binding deadlines for compliance,” the challenge said. “By their uniform content, structure, and statewide distribution, these letters were not isolated enforcement notices but rather the department’s chosen vehicle for implementing Memorandum 25-01 as a matter of general policy.”
Miami Beach filed its challenge Thursday at the Division of Administrative Hearings. Both cases seek to have an administrative law judge halt enforcement of the directives.
In the June 30 memorandum, the department cited legal authority under state manuals that include minimum standards for such things as design and maintenance of roads. It also said removal of markings and street art was needed for safety reasons.
“Non-standard surface markings, signage and signals that do not directly contribute to traffic safety or control can lead to distractions or misunderstandings, jeopardizing both driver and pedestrian safety,” the memorandum said. “Furthermore, uniform and consistent application of pavement surface markings is critical for the overall effectiveness of automated vehicle operation, as automated vehicle technologies rely heavily on consistent traffic control devices.”
Fort Lauderdale and Miami Beach said they also have filed separate petitions at the Department of Transportation. The Fort Lauderdale challenge said the department had set aside time Sept. 15 for an “informal” hearing and that the city will argue for a formal hearing.
–Jim Saunders, News Service of Florida
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