were destroyed by an act of God; and (4) are destroyed nonconforming signs which cannot be re-erected (the signs have been re-erected), all in violation of Rule 14-10.007, Florida Administrative Code.
This consolidated proceeding was initiated by the filing of six separate requests for formal administrative proceedings by Respondent Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation (hereinafter "Respondent"), pursuant to Sections 120.569 and 120.57(2), Florida Statutes, in response to six Notices of Violation issued by Petitioner. The matters were referred to the Division of Administrative Hearings ("Division") for assignment of an Administrative Law Judge and a formal hearing on February 22, 1999. The cases were later consolidated into this proceeding and set for hearing. Discovery
ensued and the parties filed a Prehearing Stipulation, which included 21 stipulated findings of fact which have been incorporated herein.
At the formal hearing, Petitioner called two witnesses, Ranger Ron Weis and John Garner, and offered Petitioner's Exhibits 1-4, which were admitted into evidence. One exhibit was marked for identification but not admitted in evidence.
Respondent called one witness, Dennis Dewar, and offered Respondent's Exhibits 1-2, which were admitted into evidence. One exhibit was marked for identification but not admitted in evidence. At the conclusion of the hearing, the parties were directed to file any proposed recommended orders within 15 days from the date the transcript was filed with the Division.
The Transcript was filed on August 27, 1999. Petitioner filed its Proposed Recommended Order on September 13, 1999.
Respondent filed its proposals on September 10, 1999. Each proposal has been given careful consideration in the preparation of this Recommended Order.
Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation ("Respondent"), owns and maintains four off- premise outdoor advertising signs located along Interstate 95 in Brevard County, Florida. Respondent also owns and maintains two off-premise outdoor advertising signs located along U.S. Highway
1 in Brevard County, Florida. These six off-premise outdoor
advertising signs are generally hereinafter referred to as the "signs."
Outdoor advertising is a lawfully recognized business which is regulated under the provisions of Chapter 479, Florida Statutes, by Petitioner.
Respondent is licensed by Petitioner in the business of outdoor advertising.
The Division of Forestry of the Department of Agriculture and Consumer Services ("DOF") is governed by Chapter 590, Florida Statutes, and is responsible for fire protection, fire control, and land management. DOF is charged with the protection of life, property, and natural resources.
Petitioner classified the signs as "non-conforming" outdoor advertising signs at all times relevant to this proceeding.
The six signs were maintained under the following Department of Transportation ("Department") sign permit tag numbers and were located as follows at all times relevant to this proceeding, each within 660 feet of the first named highway or interstate and each within Brevard County, Florida.
Sign Permit # Location
BQ 032-55 West of Interstate 95, 3.725 miles north of
NEB700136/060 State Road 46
BU 726-55 West of Interstate 95, 1.572 miles north of
NEB700138/066 Aurantia Road
BU 723-55 West of U.S. Highway 1, 0.324 miles north of
County Road 5A
BU 724-55 West of U.S. Highway 1, 0.339 miles north of
County Road 5A
BU 721-55 West of Interstate 95, 3.601 miles north of
NEB700136/060 State Road 46
BU 720-55 West of Interstate 95, 3.667 miles north of NEB700136/060 State Road
Each of the signs was lawfully permitted by Petitioner at the described location during the relevant time period. Each of the six signs was used for leasing advertising space to third parties and each individually generated income to Respondent.
The signs located along Interstate 95 were erected in 1971 and the signs located along U.S. Highway 1 were erected in 1964.
The signs located along Interstate 95 were located less than 1,000 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department.
Each of the signs located along U.S. Highway 1 was located less than 500 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department.
None of the signs were located in an area designated for commercial or industrial use.
Interstate 95 is an interstate highway and U.S. Highway
1 is a federal primary highway.
The upright supports of each of the six signs were wood, and such signs are structures.
In June and July of 1998, an extensive wildfire burned in the area of Brevard County located generally north of State Road 46.
During the evening of June 26, 1998, a thunderstorm passed through the area of Brevard County west of the signs. The weather conditions at that time were extremely dry.
An event constituting an act of God is any sudden manifestation of the forces of nature without human intervention.
The best evidence for the cause of the fire is that lightning during the storm started two wildfires in remote areas west of the signs. The fires were identified by DOF as the Freshwater and Break 5 (or Break 10) fires. Each fire initially spread west.
DOF began efforts to combat the Freshwater Fire and the Break 5 fire on June 27, 1998. However, the fires expanded as a result of weather conditions.
Because of the hot, dry weather conditions and erratic winds, and despite the continuing efforts of DOF, the fires continued to expand and burned together on June 29, 1998. The combined fires were referred to as the Farmington Fire.
On the evening of June 30, 1998, rapid winds from the west caused the Farmington Fire to expand and travel to the east and northeast.
As the fire continued to rapidly expand on July 1, 1998, DOF determined that it was unsafe to locate firefighting equipment in the path of the fire.
On or about July 1, 1998, the Farmington Fire burned through the area where the signs that Respondent maintained under sign numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and
BU 724-55 were located.
On or about July 2, 1998, the Farmington Fire burned through the area where the sign that Respondent maintained under sign permit number BU 726-55 was located.
On or about July 1, 1998, the Farmington Fire substantially burned all of the upright supports of each of the signs that Respondent maintained under sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55.
On or about July 2, 1998, the Farmington Fire substantially burned all of the upright supports of the sign that Respondent maintained under sign permit number BU 726-55.
None of the six signs was struck by lightning prior to their destruction.
The Farmington Fire spread through the areas where the six signs were located as a result of drought conditions and weather factors.
Interstate 95 and U.S. Highway 1 were closed to the public before the signs were destroyed.
Respondents attempted to access each of the six signs but could not reach the signs because of road closures by governmental authorities.
A burnout is a way of fighting a fire wherein fire is deliberately set and used in a countering measure to burn the fuel in front of a wildfire. The purpose of a burnout is to establish control over a wildfire by eliminating fuel in the existing fire's path.
If a burnout is unsuccessful, more strength is added to the wildfire because the wildfire has gained momentum.
It is possible for a prescribed burn to become a wildfire.
DOF set a fire to "burn out" an area of land involved in the Farmington Farm on the evening of June 28, 1998. This "burnout" fire was set by Ranger Weis in his capacity as an employee of DOF. The fire continued to travel after the burnouts were conducted.
The burnout did not contribute to the spread of the Farmington Fire, but temporarily helped to impede the it.
The Farmington Fire spread over 5,000 to 6,000 acres. Approximately 200 firefighters were involved in fighting the Farmington Fire. Bulldozers, fire engines, helicopters, retardant, and tankers were used in the firefighting efforts.
Many homes, businesses, and other property in the area of the Farmington Fire were saved from fire damage. Some were not saved.
The only fire in the area of the Farmington Fire that was set by someone other than Ranger Weis did not contribute to the spread of the Farmington Fire or burn the signs.
The Farmington Fire was contained on July 2, 1998.
If the same measures that had been used to protect other property from damage had been used on the billboards, the billboards could possibly have been saved from fire damage.
The measures that were taken on homes, businesses, and other structures to protect them from fire damage were not used around the subject signs.
The steps taken by DOF and firefighting crews to save homes and businesses included creating defensible space around the structures by clearing vegetation and spraying the structures with water.
House Bill 1535, which contains amendments to Chapter 590, Florida Statutes, allows for nonconforming buildings, houses, businesses, or other appurtenances to property destroyed by the wildfires of June and July 1998 to be re-erected in kind.
House Bill 1535 (Section 24 to revised Chapter 590, Florida Statutes) is applicable to Respondent's signs because each sign constitutes a business which, on its own, would require
a state license under Chapter 479, Florida Statutes, and which individually generates advertising revenue.
Nonconforming signs destroyed by vandalism or tortious acts may be re-erected in kind. The term "tortious acts" is not defined in Chapter 479, Florida Statutes, or in Chapter 14-10, Florida Administrative Code.
After the signs were destroyed, Respondent re-erected each of the six signs with substantially the same type of materials as had previously composed the structure of each sign, and at the same location as the destroyed signs.
The materials used to re-erect the signs were not part of the sign structures immediately before the signs were destroyed by the Farmington Fire. Respondent's signs were re- erected in kind.
Respondent does not own the property where any of the six signs are located.
Under the terms of each agreement with the property owners under which Respondent has the right to maintain the signs, upon expiration or termination of the agreement, Respondent may remove all of its sign materials from the property, and may, unless otherwise agreed, no longer maintain the signs.
Excluding the signs, Respondent conducts no other business activities on the property upon which the signs are located.
Petitioner's witness, Ronald Weis, a Senior Forest Ranger with the Division of Forestry, had personal knowledge of the wildfires that occurred in Brevard County during June and July 1998 and participated in the investigation, management, and fighting of the wildfires in Brevard County in the areas where the subject signs are located.
Respondent's witness, Dennis R. Dewar, based upon his years of experience and education in various fire fighting and teaching capacities, is qualified as an expert to testify in the areas of fire fighting training, fire fighting operations, the spread of fires, and the cause and origin of fires.
The opinion testimony of Mr. Dewar, concerning the cause of the damage to the signs and the cause, origin, and spread of the Farmington Fire, was not persuasive.
DOF regulates prescribed burns. However, it cannot mandate prescribed burns on private property.
A prescribed burn is the controlled application of fire to property. One of the primary purposes of prescribed burning is to reduce the fuel load and, therefore, reduce fire hazard.
The failure to prescribe burn increases the possibility of a wildfire. It is foreseeable that if prescribed burns are not done in an area over time the possibility of the spread of wildfire is foreseeable.
A wildfire is any fire over which DOF has no control.
Typically, a fire started by lightning can be controlled and contained.
When a lightning strike starts a fire, the spread of that fire is influenced by human intervention.
Property usually can be protected from damage as a result of a fire started by lightning.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proof and the burden of going forward with the evidence. Florida Department of Transportation vs. J.W.C. Company, Inc., and Department of Environmental Regulation, 396 So. 2d 778 (Fla. 1st DCA 1981).
Prior to 1971, there were not any State laws restricting the spacing between outdoor advertising signs and/or requiring that signs be located in areas designated for commercial or industrial use. Thereafter, Chapter 71-971, Section 2 at 28, Laws of Florida, amended the provisions of Section 479.02, Florida Statutes, by charging the Department of Transportation with the responsibility of enforcing the provisions of an agreement to be executed by the governor "in accordance with Title I of the Highway Beautification Act of 1965, and Title 23, U.S. Code, to regulate size, lighting, and
spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial areas." That agreement, which was previously incorporated into Rule 14-10.009, Florida Administrative Code, was executed on January 27, 1972, by and between the United States and the State of Florida (hereinafter referred to as "the Federal-State Agreement"). Both the Federal- State Agreement and the amended provisions of Section 479.02, Florida Statutes, required that signs located along interstate roads be at least 1,000 feet apart and that signs located along primary roads be at least 500 feet apart. After 1984, these spacing restrictions were increased, and signs constructed thereafter are required to be 1,500 feet apart if located along interstate highways, and at least 1,000 feet apart if located along federal primary highways. The Federal-State Agreement also restricted signs along interstate and federal primary highways to property that was zoned for commercial or industrial use.
Section 479.111, Florida Statutes, echoes the land use restrictions stated in the Federal-State Agreement.
Petitioner has the authority to impose the rules set forth in Rule 14-10.007, Florida Administrative Code, pursuant to Section 479.02, Florida Statutes, and 23 C.F.R. Section 750.707(6), which governs the maintenance and continuation of nonconforming signs. Specifically, 23 C.F.R. 750.707(d)(6) states a "sign may continue as long as it is not destroyed, abandoned, or discontinued. If permitted by State law and re-
erected in kind, exception may be made for signs destroyed due to vandalism and other criminal or tortious acts."
The Notices of Violation issued by Petitioner alleged that Respondent's signs were destroyed by an Act of God, and that a nonconforming sign which is destroyed may not be re-erected. Rule 14-10.007(1)(d), Florida Administrative Code. However, if a nonconforming sign is destroyed as a result of a criminal or tortious act, the sign may be re-erected in kind pursuant to Rule 14-10.007(1)(f), Florida Administrative Code.
The uncontradicted evidence presented at the hearing of these consolidated matters was that each of the six signs were and are classified by the Department of Transportation as nonconforming because they do not meet either the pre-1984 spacing requirements or the land use restrictions expressed in State law adopted after their construction.
The cause of destruction to the signs is essential in determining whether or not the subject signs are entitled to be maintained pursuant to the State permits. If the signs were destroyed by vandalism, or other criminal or tortious acts, the signs may be re-erected in kind and do not lose their nonconforming status. Rule 14-10.007(1)(f), Florida Administrative Code, is an exception to the rule that nonconforming signs destroyed may not be re-erected, and as such, the burden of proof is on Respondent to demonstrate by a preponderance of the evidence that it falls within the exception.
It is undisputed that on July 1 or 2, 1998, each of the six signs was destroyed by wildfire under the definition of "destroyed" set forth in Rule 14-10.007(1)(d), Florida Administrative Code.
The wildfire that destroyed the signs was the fire known as the Farmington Fire. The best evidence presented at the hearing concerning the cause of this fire, and the reasons why it eventually burned the six signs, was presented through the testimony of Senior Forest Ranger Ron Weis, and Petitioner's exhibits he referenced. Ranger Weis' testimony convincingly established that the Farmington Fire developed out of two smaller fires that were started by lightning strikes. It overran the properties where the signs were located because of a combination of dry weather conditions and wind.
Respondent presented no persuasive evidence that either of the two component fires or the progression of the combined fire resulted from any other cause. Respondent's sole witness admitted that the component fires of the Farmington Fire may have been caused by lightning. The fire which destroyed the Respondent's signs was caused by forces of nature, and is, therefore, the result of an Act of God.
Vandalism is a willful or malicious act intended to damage or destroy property. Black's Law Dictionary, page 1553 (6th Ed. 1990). A criminal act is the commission of a crime. Black's Law Dictionary, page 372 (6th Ed. 1990). A crime in
Florida is a felony or misdemeanor offense punishable under the laws of the State of Florida. Section 775.08, Florida Statutes. A tortious act is a private injury for which the law will provide a remedy in the form of any action for damages. Shaw vs.
Fletcher, 137 Fla. 519, 188 So. 135 (1939); Black's Law Dictionary, page 1489 (6th Ed. 1990). A tortious act is a violation of a duty imposed by law. Black's Law Dictionary, page 1489 (6th Ed. 1990). None of Respondent's theories for the destruction of its signs fit within any of these definitions.
No evidence was offered that any person committed any act intending to damage or destroy any of the signs. Therefore, the exception for vandalism does not apply. Similarly, no evidence was offered that would establish that any person committed any offense punishable under the laws of the State of Florida. The exception for signs destroyed by criminal acts also does not apply.
The argument of Respondent is that the signs were destroyed because of some tortious act. The acts upon which Respondent relies are the actions of DOF in lighting backfires in areas far removed from the signs, other decisions on firefighting techniques employed by DOF, the decision by government authorities to close the highways to public travel during part of the fires, and the failure of either DOF or certain landowners to engage in prescriptive burning to reduce the fuel loads in the
areas that were eventually burned by the Farmington Fire. None of these actions would constitute a tortious act.
The only fires set by DOF to "burn out" areas of land involved in the Farmington Fire were set by Ranger Weis in his capacity as an employee of DOF. The burnouts did not contribute to the spread of the Farmington Fire. The only fire in the area of the Farmington Fire that may have been set by someone other than Ranger Weiss did not contribute to the spread of the Farmington Fire.
The actions of DOF in deciding to "burnout" areas of land can not be the basis for a tort because the decisions of how to properly fight a fire are discretionary judgment decisions. City of Daytona Beach vs. Palmer, 469 So. 2d 121 (Fla. 1985). Similarly, the tactics employed to fight the Farmington Fire, including the decision to close the highways, are inherent to the public safety function of fire protection for which the law recognizes no common law duty of care to act in any particular fashion and for which no tort liability can attach. Id.; Section 590.02(3), Florida Statutes.
The final theory advanced by Respondent's witness is that the failure of some persons to engage in prescriptive burning caused the spread of the fire. DOF has no ability to require prescriptive burning, nor may it enter onto property to do so without landowner consent. Section 590.025, Florida Statutes. Although the Division may ask their landowners to burn
property, this is a discretionary fire protection decision by the Division, for which no common law duty exists, and for which no tort liability can attach under the doctrine followed in City of Daytona Beach vs. Palmer, supra, and the cases cited therein.
Nor does an owner of real property have any duty to engage in prescriptive burning of vegetation in order to reduce the potential for spread of naturally occurring wildfires on or across the property. Without a contrary governing statute, the law in Florida is that the right of recovery for damages from fire spreading from the property of another depends upon the existence of negligence in the fire's origin, negligence in controlling the fire, or, under certain circumstances not applicable here, negligence in failing to furnish means for extinguishing a fire. Bush vs. City of Dania, 121 So. 2d 169,
171 (Fla. 2d DCA 1990); Weis-Patterson Lumber Company vs. King,
131 Fla. 342, 177 So. 313 (1937). The Restatement (Second) of Torts, Section 363 (1977), indicates that no liability should accrue to the owner or possessor of land in a non-urban area for physical harm caused to others outside of the land by a natural condition of the property. No duty to engage in prescriptive burning is found in Florida statutory or case law. Where no duty exists, no liability in tort can result. Partelow vs. Edgar, 219 So. 2d 72, 73 (Fla. 4th DCA 1969). Even if there should be a public policy encouraging prescribed burning, the failure to act in accordance with the public policy is not a tort in the absence
of an act constituting a breach of a legal duty. Catania vs. Eastern Airlines, Inc., 381 So. 2d 265, 267 (Fla. 3d DCA 1980). Moreover, there has been no showing that it would have been reasonable for any property owner to have conducted any prescribed burning at any particular time, or that any particular burning would have prevented the Farmington Fire from destroying the signs. No decisions concerning prescriptive burning in the areas involved in the Farmington Fire rise to the level of a tortious act that would permit Respondent to re-erect its signs.
Chapter 99-292 (CS for HB 1535), Laws of Florida (1999), states: "Notwithstanding any other law, regulation, or local ordinance to the contrary, the owners of any nonconforming buildings, houses, businesses, or other appurtenances to real property which were damaged or destroyed during the wildfires that occurred during June and July of 1998, may elect to repair or rebuild such nonconforming structures in like-kind, unless prohibited by Federal law or regulation."
This provision does not authorize the re-erection of the six signs for two reasons. The first reason is that the signs are not appurtenances to real property within the coverage of the law. An appurtenance is something belonging to something else, which passes as incident to that to which it belongs and which is intended to be a permanent accession to the freehold. Black's Law Dictionary, page 103 (6th Ed. 1990). A thing that is appurtenant to real property will pass with conveyance of the
real property. Brown vs. Rice, 716 So. 2d 807 (Fla. 5th DCA 1998); McIlvaine vs. Florida East Cost Railway Company, 568 So. 2d 462 (Fla. 1st DCA 1990). Under Florida law, outdoor advertising signs are considered personal property and not realty. Hernando County vs. Anderson and Yeager, So. 2d ,
24 FALW D1385 (Fla. 5th DCA June 11, 1999).
Respondent does not own the real property where the signs were located, and conducts no other business activities on the properties upon which the signs were located. Upon expiration or termination of the agreements with the property owners under which Respondent has the right to maintain the signs, Respondent may remove all of its sign materials from the property, and may no longer maintain the signs. The signs are not appurtenances to real property; they would not pass with title to the real property and they are clearly not intended to be a permanent accession to the freehold. They are not, themselves, a business.
The second reason that CS for HB 1535 does not authorize re-erection of the signs is that re-erection is prohibited by Federal law or regulation. 23 C.F.R. Section 750.707(6), promulgated by the Federal Highway Administration under the United States Department of Transportation, prohibits re-erection of the six signs that are the subject of this consolidated proceeding. That regulation states that nonconforming signs may not continue after being destroyed. The
six signs involved in this consolidated proceeding all meet the definition of nonconforming signs under the regulation, because although they were lawfully erected, each failed to comply with the provisions of State law and regulation adopted after the signs were originally erected. Subsection 6 permits each state to make exceptions to the general rule prohibiting re-erection of destroyed nonconforming signs when signs are destroyed due to vandalism and other criminal or tortious acts. The State of Florida has provided just such an exception through Rule 14.10.007(1)(f), Florida Administrative Code. However, as discussed above, none of these exceptions apply to the six signs that are the subject of this consolidated proceeding. Because 23
C.F.R. Section 750.707(6), prohibits re-erection of the six signs, the provisions of CS for HB 1535 do not authorize the re-erection of the six signs.
Therefore, it is concluded that the six signs which are the subject of this consolidated proceeding were lawfully erected, but at the time each was destroyed on July 1 or 2, 1998, the signs did not comply with the provisions of Section 479.07, Florida Statutes, regulating the spacing of signs, or the restrictions found in Section 479.111, Florida Statutes, limiting signs to areas designated predominately for commercial or industrial use.
At the time each was destroyed on July 1 or 2, 1998, the six signs were "nonconforming" for the purposes of Chapter
479, Florida Statutes, and Rule Chapter 14-10, Florida Administrative Code.
The six signs that are the subject of this consolidated proceeding were destroyed by the Farmington wildfire under the definition of "destroyed" set out in Rule 14-10.007(1)(d), Florida Administrative Code.
None of the six signs were destroyed by vandalism, or other criminal or tortious act.
23 C.F.R. Section 750.707(6) prohibits re-erection of the six signs that are the subject of this consolidated proceeding.
None of the six signs were appurtenances to real property.
Chapter 99-292 (CS for HB 1535), Laws of Florida, does not authorize the re-erection of any of the six signs that are the subject of this consolidated proceeding.
Rule 14-10.007, Florida Administrative Code, prohibits the re-erection of the six signs which are the subject of this consolidated proceeding.
On or about July 1, 1998, the signs maintained by Respondent under sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55 lost their nonconforming status and became illegal.
On or about July 2, 1998, the sign maintained by Respondent under sign permit number BU 726-55 lost its nonconforming status and became illegal.
The six signs were unlawfully re-erected by Respondent.
