STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, ) Case Nos. 97-4571T

) 97-4572T

vs. ) 97-4573T

) 97-4574T

EVERGLADES WONDER GARDENS, ) 97-4575T

) 97-4576T

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on January 5, 1998.

The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Kelly A. Bennett

Assistant General Counsel Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: David T. Piper, Jr.

Everglades Wonder Gardens Post Office Box 292

Bonita Springs, Florida 33959 STATEMENT OF THE ISSUE

The issue is whether Petitioner may revoke Respondent’s permits for six outdoor advertising signs.

PRELIMINARY STATEMENT

By five Notices of Violation--Removed Sign Failure to Display Permit Tag, Petitioner notified Respondent that five of its signs no longer existed. These notices are the bases of DOAH Case Nos. 97-4571T through 97-4575T. By a sixth Notice of Violation--Removed Sign Failure to Display Permit Tag, Petitioner notified Respondent that a sixth sign lacked its permit tag. This notice is the basis of DOAH Case No. 97- 4576T. Respondent timely demanded a hearing on these notices.

At the hearing, Petitioner called two witnesses and offered into evidence three exhibits, which were all admitted. Respondent called one witness and offered into evidence no exhibits.

The court reporter filed the transcript on January 23, 1998.

FINDINGS OF FACT

1. Everglades Wonder Gardens is a family owned and operated Florida tourist attraction that, for over 60 years, has displayed Florida wildlife and vegetation for the enjoyment of its visitors.

2. David T. Piper, Jr., is the owner of Everglades Wonder Gardens. His grandfather started the attraction and was largely responsible for its management until his death six years ago. Mr. Piper’s father, a cattleman, assumed the management of the business for a short time, but Mr. Piper

   soon assumed these duties from his father. Like his grandfather, Mr. Piper specializes in working with animals.

3. Since the 1930s, Everglades Wonder Gardens has used roadside signs to advertise to motorists. Everglades Wonder Gardens has often arranged the roadside signs in a series, similar to the method used by the Burma Shave signs of the same era.

4. The Burma Shave signs conveyed the advertising message in a series of short phrases. An example is: "We’ve made Grandpa . . . Look so young . . . His pension board thinks . . . BURMA SHAVE."

5. Mr. Piper’s grandfather cut out the signs with a coping saw. As a little boy, Mr. Piper helped his grandfather make and install some of the signs.

6. The signs are slatted to allow the wind to pass through them without damaging the signs. The wooden signs’ simple construction facilitates repair and replacement. They are affixed to two poles made of lighter pine that is nearly as hard as petrified wood and resists decay and breakage.

7. The signs are separated from the highway by canals. Mr. Piper or his employee services the sign by placing a small generator and ladder in a 12-foot jon boat and paddling the boat to the base of the sign. With the aid of the ladder and a block and tackle, Mr. Piper or his employee gets to the top

   of the sign, unbolts the two lag bolts that attach the sign to the poles, repairs or replaces the sign, and leaves the site.

8. Following an inspection by one of Petitioner’s representatives, Petitioner issued Respondent six Notices of Violation--Removed Sign Failure to Display Permit Tag. Five of the notices are for signs that have been destroyed, and one notice is for a sign not displaying the permit tag. All the signs were on U.S. Route 41 in Collier County.

9. Petitioner issued Notice No. 1-03-790 on August 1, 1994, for a sign located 1500 feet north of State Road 29 at milepost 32.63. This notice is the basis of DOAH Case No. 97- 4571T. The relevant part of the notice states:

   Our records indicate that the outdoor advertising sign identified below no longer exists at the site identified in the permit application.

   
   

   This is a nonconforming sign and MAY NOT BE RE-ERECTED. Your outdoor advertising permit will be revoked by the Department within thirty (30) days from receipt of this notice of violation pursuant to Section 479.08, Florida Statutes. You may request an administrative proceeding as outlined below. However, the filing of a request for an administrative proceeding will not stay the revocation of the permit(s). The referenced permit tags must be returned to the Department for cancellation.

10. Notice No. 1-03-785 applies to a sign located 1000 feet north of State Road 29 and is the basis of DOAH Case No. 97-4572T. Notice No. 1-03-788 applies to a sign located 500 feet north of State Road 29 and is the basis of DOAH Case No.

    97-4573T. Notice No. 1-03-787 applies to a sign located 200 feet north of State Road 29 and is the basis of DOAH Case No. 97-4574T. Notice No. 1-03-792 applies to a sign located 4.16 miles south of State Road 951 and is the basis of DOAH Case No. 97-4575T. Petitioner issued all of these notices on August 1, 1994, and they all contain language identical to that quoted above.

11. By Notice of Violation--Signs for which Permits Have Been Issued, also dated August 1, 1994, Petitioner asserted that a sign located four miles south of State Road 951 failed to display a valid permit tag, in violation of Section 479.07(5)(a). This notice, which is Notice No. 1-03-793, states:

    YOU ARE HEREBY NOTIFIED that, as a result of the above, Permit No(s). AZ104-25 will be revoked by the Department pursuant to Section 479.08, Florida Statutes, unless within 30 days after receipt of this notice, the above violation is corrected and written notice of compliance has been delivered to [Petitioner].

    
    

12. Mr. Piper did not respond to these notices. In fact, the missing signs were damaged by Hurricane Andrew in late August 1992.

13. A few days after the hurricane passed, Petitioner, by letter dated August 28, 1992, advised Everglades Wonder Gardens that the five missing signs had been destroyed, and "[o]ur records indicate these to be nonconforming signs and therefore cannot be rebuilt." The letter explains that Rule

    14-10.007(2)(c), Florida Administrative Code, defines a "nonconforming sign" as one destroyed by an Act of God and defines "destroyed" as a sign for which the new materials’ cost of reerection exceeds 50 percent of the pre-destruction, depreciated value of the sign’s structural materials. The letter, which gives Everglades Wonder Gardens a right to demand a hearing within 30 days of the notice, concludes: "In either case, if you fail to comply within the thirty (30) day period, the described violation shall be considered true and the Department of Transportation reserves the right to take such action as the law permits without further action."

14. By letter dated October 1, 1992, Mr. Piper responded to Petitioner’s letter. His letter states that the sign company was backed up due to extensive hurricane damage in the area and that, "since every letter is cut out and nailed in it [apparently the replacement work] is very costly . . .." He enclosed a bid from a Naples sign company of $1282.07 per sign.

15. By letter dated October 6, 1992, Petitioner responded to Mr. Piper’s letter. This letter states that Everglades Wonder Gardens could repair or reerect the five signs if the cost did not exceed $65 per sign.

16. Mr. Piper appears to have taken no further action after receiving the letter of October 6. He was still distressed by the death of his grandfather, whom he describes

    as the family "patriarch." He had to deal with damage from Hurricane Andrew. He was an expert on animals, not business.

17. Mr. Piper or any of his employees can reerect the signs for less than $65 each. He estimated at the hearing that he could reerect the signs for $30 each, including materials and labor.

18. Mr. Piper’s sole explanation for failing to respond to the sixth notice, for the missing tag, is distress due to his grandfather’s death.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

20. The burden of proof is on Petitioner because it seeks to revoke permits held by Everglades Wonder Gardens.

21. Section 479.08 provides:

    
    

    The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter, unless such permittee, within 30 days after the receipt of notice by the department, corrects such false or misleading information and complies with the provisions of this chapter. . . .

22. The five notices fail to give Everglades Wonder Gardens 30 days within which to correct the violations. These notices inform Everglades Wonder Gardens only that its five sign permits are revoked.

23. Petitioner contended at the hearing that it is not required to provide a permitholder 30 days within which to correct a violation. Petitioner construed Section 479.08 as requiring the 30-day notice only for correcting false or misleading information. This interpretation is consistent with the word, "and," between "information" and "complies." By contrast, Section 479.05, which applies to licenses, contains identical language to Section 479.08, except that it places the word, "or," between "information" and "complies."

24. The Legislature probably did not use "and" in Section 490.08 to limit the 30-day correction period to instances of false information. There is little reason, for licenses, to allow 30 days to correct false information or comply with the provisions of Chapter 479, but, for permits, to allow 30 days only to correct false information. Petitioner’s interpretation at hearing would limit the 30-day correction period of Section 479.08 to correction of false information to gain compliance with Chapter 479. A more natural interpretation of Section 479.08 is to allow a 30-day correction period for correcting false information or for otherwise complying with Chapter 479.

25. In fact, Petitioner so construed Section 479.08 when it implied, in its letter of October 6, that Everglades Wonder Gardens could reerect the signs if certain conditions could be met.

26. Petitioner’s recognition of the right of Everglades Wonder Gardens to reerect the signs also undermines Petitioner’s argument at hearing that it lacked the authority to allow the reerection of a nonconforming sign. This argument assumes the ultimate factual issue in question, which is whether Everglades Wonder Gardens could reerect the signs for less than 50 percent of their pre-destruction, depreciated cost. The destroyed signs were not nonconforming unless reerection costs exceeded this amount.

27. In its proposed recommended order, Petitioner argues that notice was required only to inform Everglades Wonder Gardens that Petitioner intended to take some action--namely revoke the permits--and that Everglades Wonder Gardens had a right to demand a hearing. The notice misinforms Everglades Wonder Gardens that the permits are revoked in 30 days and omits mention of the statutory right to correct the violation. This notice deprives the permitholder of its statutory right to 30 days within which to correct the violations.

28. In its proposed recommended order, Petitioner argues that the statutes do not require Petitioner to explain why it is revoking the permit or how to correct the violations, if

    possible. This is true, but irrelevant. The failure of the notice in these cases is the failure of Petitioner to give Everglades Wonder Gardens 30 days within which to correct the violations. A person reading the notices in these cases would not understand his rights and might conclude that a hearing would be futile.

29. The question arises whether the August or October 1992 letter satisfied the statutory requirement that Petitioner give Everglades Wonder Gardens 30 days within which to correct the violations. The August letter mentions 30 days, but only as the time within which to demand a hearing; again, there is no mention of the right to correct the violation. The October letter mentions the right to reerect a sign, if the cost is less than 50 percent, but does not give Everglades Wonder Gardens 30 days within which to do it. Together, the letters present confused alternatives to Everglades Wonder Gardens and do not clearly comply with the statutory requirement of notice, even assuming that providing adequate notice in 1992 would relieve Petitioner of this burden in the formal notices of violation issued two years later.

30. Lastly, in its proposed recommended order, Petitioner argues that the adequacy of the notice is not an issue before the administrative law judge. Implying that Everglades Wonder Gardens had to raise the issue of notice,

    this argument suggests that compliance with statutory notice is an affirmative defense that may be waived if not timely raised by a respondent, rather than a condition precedent that Petitioner must prove to entitle it to revocation.

31. Notice is a condition precedent. Everglades Wonder Gardens has held these permits under rights granted by statute. To revoke these permits, Petitioner must comply with applicable statutory requirements, including notice. Everglades Wonder Gardens does not have to raise this matter because it is not an affirmative defense. Technically, Petitioner’s pleading is deficient because it fails to allege compliance with this condition precedent.

32. Petitioner has thus failed to demonstrate that it has a right to revoke the five permits pertaining to missing signs. The evidence shows that Everglades Wonder Gardens can reerect the signs for less than 50 percent of their pre- destruction, depreciated value, and Everglades Wonder Gardens has the right to do so, provided it does so within 30 days of new notice.

33. The revocation of the sixth permit involves the failure to display a permit tag. In this case, Petitioner’s formal notice of violation gave Everglades Wonder Gardens 30 days within which to correct the violation. Despite the clear notice of violation and the relatively simple matter of obtaining a replacement tag, Everglades Wonder Gardens failed

to correct this violation and failed at the hearing to justify its inaction. Petitioner has thus demonstrated that it has a right to revoke the permit pertaining to the missing permit tag.

RECOMMENDATION

It is

RECOMMENDED that the Department of Transportation enter a final order revoking Permit AZ104-25, dismissing the other five notices of violation, and notifying Everglades Wonder Gardens that it has 30 days from the date of the order to reerect the five signs in a manner and at a cost in compliance with applicable law.

DONE AND ENTERED this 5th day of February, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998.

COPIES FURNISHED:

Kelly A. Bennett Assistant General Counsel

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

David T. Piper, Jr. Everglades Wonder Gardens Post Office Box 292

Bonita Springs, Florida 33959

Pamela Leslie, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas F. Barry, Secretary c/o Diedre Grubbs

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004571

Orders for Case No: 97-004571