) CASE NO. 86-0967T
Respondent. )
Pursuant to notice a hearing was held in this cause on August 11, 1986, in Melbourne, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.
For petitioner: Philip S. Bennett, Esquire
For respondent: Victor M. Watson, Esquire
Whether respondent's nonconforming sign was destroyed by an Act of God, and therefore its license should be revoked, or whether respondent's sign was merely damaged and the action taken by respondent constitutes reasonable repair and maintenance of the sign.
On February 13, 1986, the Department of Transportation (DOT) sent a letter to respondent notifying it that its sign permit 7865-10 was being revoked pursuant to section 479.08, Florida Statutes (1984 Supplement). The letter, citing to Rule 14-10.07, Florida Administrative Code, stated that the basis for revocation was that the sign had been removed and as a nonconforming sign could not be re-erected. The letter advised that "[under these circumstances the subject permit can no longer be considered valid under Section 479.07, Florida Statutes (1984 Supplement)." On the same date petitioner issued a notice entitled "Alleged Violation of the Florida Statutes and Florida Administrative Code and Notice to Show Cause" which alleged that respondent owned a sign that was in violation of Section 479.07(1) Florida Statutes, in that it had no state permit, and that the sign was also in violation of Section 479.07(9)(a)i and Rule 14-10.06(3)(b), in that it violated the spacing rule. The letter and notice apparently refer to the same sign location.
On March 10, 1986, the respondent filed a petition requesting a formal administrative hearing. The petition alleged that in the sixties respondent erected a sign on property abutting I-95, located five miles south of state road 50, that the sign was permitted in 1974, and that the sign has remained on the property continuously since that time. The petition further alleged that on December 14, 1985, the respondent's sign was damaged when the supporting poles were broken approximately three feet above the ground and that new poles were the only materials that were necessary for the repair of the sign. The petition stated that since the sign was down, respondent decided to repaint the sign at that time as part of its regular maintenance program. The respondent asserted that its billboard is a lawful, nonconforming sign, and that respondent's actions merely constituted reasonable repair and maintenance of the subject billboard, and therefore its permit should not be revoked.
On July 9, 1986, the parties filed a prehearing stipulation in which the Department asserted its position to be that respondent's non-conforming sign was destroyed by an Act of God and therefore its license should be revoked. The respondent's position is that the sign was merely damaged and that the actions taken by respondent constituted reasonable repair and maintenance of the sign.
The parties also stipulated to certain facts.
At the hearing, the petitioner presented the testimony of Thomas King, former Outdoor Advertising Inspector for the Department, and Peter Wright, Administrator of the Outdoor Advertising Section of the Department of Transportation, Fifth District. Petitioner's exhibits I-10 and 12 were admitted into evidence. The respondent presented the testimony of Larry M. Harvey, the president of Harvey's Groves, Inc.; Johnny C. Clayton, an employee of Harvey's Groves; and Kenny Belcher, operations supervisor with 3M International Advertising Company. Respondent's exhibits 1-2 and 4-9 were admitted into evidence. Both parties have filed proposed findings of fact and conclusions of law, and a ruling of each of the proposed findings of fact has been made in the appendix to this order.
Harvey's Groves, Inc. is a citrus grower, shipper and retailer. Harvey's Groves has three retail stores in Brevard County. Ten billboards advertise these stores. Two signs advertise the store located at the intersection of I-95 and State Road 50. One of those signs is located one mile north of the intersection and advertises to traffic headed south. The other sign, which is the sign involved in this dispute, is located five miles south of the intersection. It is designed to advertise to northbound motorists, especially tourists on their return trip north. This sign has been in existence since the mid or late sixties.
Respondent holds DOT sign permit number 7865-10 for the sign located five miles south of the intersection of I-95 and state road 50. The sign is a nonconforming sign as defined in Chapter 479, Florida Statutes. The sign is located in an area zoned agricultural, and thus would be prohibited except for its nonconforming status.
On December 14, 1985, the sign was blown down by a windstorm. All six of the poles which supported the sign snapped a few feet above the ground and below the face of the sign resulting in the rest of the sign structure falling flat on its back. Other than the snapped poles, the sign was only slightly damaged. The two stringers on the top left hand corner of the sign and the top
stringer on the right end of the sign had been broken but the remainder of the structure was basically intact. The sign face was still attached to the structure.
The majority of the sign face had not been damaged. Mr. Harvey, the only person who saw the sign face prior to its repair, testified that two of the 4' x 8' panels had cracked but were still usable. However, the pictures of the old sign face, introduced-into evidence by respondent, showed that three 4' x 8' panels were missing from the sign face and apparently needed to be replaced. Further, two panels that were in the sign face at the time the pictures were taken contained no copy, and thus appeared to be replacement panels, but no evidence was presented to explain the blank panels.
Prior to December 14, 1985, the sign consisted of a 14' x 40' rectangular sign face, with "cutouts" or embellishments which extended the height of the sign at certain points, attached to a sign structure consisting of six perpendicular poles and seven horizontal stringers. The sign face was attached to the stringers which ran the width of the sign. The stringers consisted of 2" x 4" boards which were nailed or spliced together to run the 40' width of the sign. A 2" x 4" board does not come in a 40' length. The poles extended approximately 18 feet above ground level; however, additional boards had been attached to the top of the poles so that the top of the sign extended above the top of the poles. The top two horizontal stringers supporting the sign face were located above the top of the pole that was measured as extending
18 feet above ground level. (R.Ex.#4)
The HAGL, or height above ground level, of a sign is measured from the ground to the bottom of the sign face. Immediately prior to December 14, 1985, the HAGL of the sign was approximately 10 feet. However, the evidence was conflicting as to whether the HAGL had always been the same. Mr. King testified that the HAGL was measured in 1976, and at that time the HAGL was five feet. However, although Mr. King personally measured the sign, his testimony was not based on his personal knowledge of the measurement, but was instead based on his recollection of what the DOT records indicated the sign measured. The only record of DOT introduced into evidence, the Outdoor Advertising Inventory Update Listing, listed the HAGL at four feet. However, the computer printout listing alone is not sufficient to establish the HAGL of the sign because there was no competent evidence establishing the source, date, or reliability of the information. Further, other evidence is inconsistent with a 4-foot HAGL. Mr. Wright measured one of the broken poles and determined that the part of the pole still standing was four feet from the ground level to the break on top.
However, petitioner's exhibit number 8, which shows the measured pole, notes the location of a 1964 permit tag affixed to the pole. The permit tag is not located on the 4-foot portion of the pole that is still standing; it is located on the portion of the pole that had broken off, and it is located well above the break. Thus, it is apparent that the HAGL could not have been four feet because that would put the permit tag behind the sign face. Petitioner argues that the HAGL had to be only four feet because the broken pole measured 18 feet above ground level and a 14-foot sign face on an 18-foot pole would leave only four feet between the bottom of the sign face and the ground. However, petitioner's argument is premised on the assumption that the top of the sign face was level with the top of the pole. There was no evidence presented to support this assumption. To the contrary, as found in the proceeding paragraph, the evidence clearly indicated that the top of the sign face was located above the top of the pole. Thus, in that there was no competent evidence to the contrary, the testimony of Mr. Harvey, that the HAGL has always been the same, is accepted,
and it is found that the HAGL of the sign at all pertinent times prior to December 14, 1985, was approximately 10 feet.
Prior to December 14, 1985, the sign was well maintained and in good condition. Every year in October or November the sign was checked to determine if any repairs were necessary. Every two or three years the sign was painted.
On December 14 or 15, 1985, Mr. Harvey was advised that the sign was down. He went to the location and found the sign intact, flat on its back, and all six poles broken. Since the sign was down, Mr. Harvey had the sign face removed and taken to Harbor City Signs for painting. About three weeks after the incident, respondent installed six new poles that were 30' in length and extended about 24' above ground level. Respondent put all new stringers on the poles because it was easier and faster to put up new stringers than to remove the stringers from the old poles and put them on the new poles. Because the sign is responsible for a substantial amount of respondent's business, respondent's major concern was to get the sign back up as soon as possible.
On January 21 and 22, 1986, Mr. King went to the location. He observed that the old sign structure was on the ground and that a new sign structure, with all new stringers and poles, had been erected. The new structure had nine stringers and the bottom stringer was approximately ten feet above the ground. The sign face had not been attached to the new structure. Mr. King placed a stop work order on the structure. When respondent was ready to attach the repainted sign face, apparently a short time after Mr. King's inspection, the stop work order was discovered.
Thereafter, and apparently in an attempt to comply with what he perceived the DOT rules to be, Mr. Harvey had the new stringers removed from the new poles and had the stringers from the old structure affixed to the new poles. The new structure contained 10 horizontal stringers supporting the-sign face, one of which was new material. The cutout was also supported by a new horizontal stringer and a new perpendicular stringer. (P.Ex.10 and 12) The sign face was attached to this structure in March of 1986. The repainted sign face was essentially the same as it was prior to the accident, except that at the bottom, where it previously had stated "Indian River's Finest Citrus", the sign stated "Next Exit Florida's Best."
The HAGL of the reerected sign was approximately the same as the old sign. Although Mr. King testified that the new HAGL was about 12 feet and Mr. Wright testified that the new HAGL was from 12-14 feet, their testimony was simply what they estimated the HAGL to be. Mr. Clayton, who actually affixed the stringers and repainted sign face, testified that the repainted sign face was placed at the same height above ground level as it had been before. Further, the photos taken of the sign in March and July (P.Ex.#5 and #10) do not support a finding that the new HAGL was 12-14 feet. Even if the measurement of
28 1/2 feet drawn on petitioner's exhibit number 10 were accurate, and there was no testimony revealing how this figure was derived, it is not useful in determining the HAGL since it purports to measure the distance from the top of the cutout to the ground. The 14' height of the sign does not include the height of the cutout, and there was no testimony to establish how many feet the cutout added to the height of the sign. Therefore, the testimony of Mr. Clayton is accepted as being the most competent evidence regarding the new HAGL. Thus, the HAGL on the sign after the sign face had been replaced was approximately 10 feet.
After the sign face was attached in March, the sign looked about the same as it had prior to December. The sign's location in relationship to the road was the same and the HAGL was approximately the same. There was no increase in visibility. As Mr. King testified, there was no significant difference in the way the sign looked after its repair and the way it looked prior to December 14, 1985.
There was no evidence presented concerning the actual cost expended by respondent to repair or rebuild the sign. There also was no evidence presented concerning the depreciated value of the sign prior to December 14, 1985. The only evidence presented as to cost was an estimate of the cost to replace the six poles. It was estimated that a new pole would cost about eighty or ninety dollars and that it would cost about thirty dollars per pole to have the poles placed in the ground.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Both parties agree that Rule 14-10.07(2), Florida Administrative Code, governs this case. However, petitioner asserts that the rule as amended January 1, 1986, applies; whereas respondent asserts that the rule in effect on December 14, 1985, applies. Respondent argues that since the sign was either damaged or destroyed on December 14, 1985, the rule in effect on that date should govern this matter. Respondent's argument fails for three reasons. First, Rule 14- 10.07(2)(c), which deals with signs destroyed by an Act of God, was basically unchanged by the 1986 amendment. Second, the actions taken by respondent to repair the sign occurred subsequent to the amendment of the rule. Finally, the substantive portion of the repair and maintenance rule remains the same; the amendment only eliminated the cost method of determining what was reasonable repair and maintenance and more fully explicated actions that would not constitute reasonable repair and maintenance.
In the prehearing stipulation filed in this cause, DOT asserted its position to be that respondent's nonconforming sign was destroyed by an Act of God and therefore its permit should be revoked. Rule 14-10.07(2)(c), Florida Administrative Code (1985 Supp.) provides:
(c) a nonconforming sign which is destroyed by an Act of God may not be reerected. Destroyed is defined as when the new materials costs to
reerect the sign exceeds 50 percent of the physically depreciated value of the structural materials in the sign, immediately prior to destruction.
In this case, the Department of Transportation presented no evidence to establish the "physically depreciated value of the structural materials in the sign immediately prior to destruction" and further presented no evidence of the "new materials costs to reerect the sign." The only evidence presented as to the costs of the new materials was that each of the new poles would cost around eighty or ninety dollars. Thus, the Department of Transportation failed to establish that the sign was destroyed" as defined in Rule 14-10.07(2)(c).
Rule 14-10.07(2)(a)' provides:
A nonconforming sign must remain substantially the same as it was as of the day it became non- conforming. Reasonable repair and maintenance, including change of advertising message, is permitted and is not a change
which would terminate nonconforming rights. Any repair or refurbishing of a sign that enlarge the dimensions of the sign facing, or that raises the HAGL of the sign so as to enhance the sign's visibility or that otherwise enhances the sign's visibility or the period of time that the sign is visible shall be considered erection of a new sign and
not reasonable repair and maintenance.
The evidence in this case established that the sign remained substantially the same after its repair as it was prior to the windstorm. The sign face was not enlarged, the HAGL remained approximately the same, and the location of the sign in relation to the highway remained the same. In other words, the sign's visibility was not enhanced in any way by the reerection of the damaged sign.
Based on the foregoing findings of fact and conclusions of law, it must be concluded that respondent's nonconforming sign was not destroyed and that the actions taken by respondent to reerect the sign constituted reasonable repair and maintenance of the sign.
