STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on April 4, 2000, by video teleconference, with sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jodi B. Jennings, Esquire

Department of Transportation 605 Suwannee Street

Hayden Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

For Respondent: Aileen M. Reilly, Esquire

Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802

STATEMENT OF THE ISSUES

At issue is whether the permits Respondent holds to maintain two outdoor advertising signs should be cancelled, and

whether the signs Respondent repaired and reerected following the destruction of the original signs by an Act of God (a hurricane) should be removed, as alleged in the Notices of Violation.

PRELIMINARY STATEMENT

Respondent, National Advertising Company, is the owner of two nonconforming outdoor advertising signs which were damaged by Hurricane Irene in October 1999. Here, for reasons explained infra, the Department of Transportation (Department) seeks to cancel the permits Respondent holds to maintain the signs and to compel the removal of the signs Respondent reerected following the destruction of the original sign structures by Hurricane Irene.

With regard to the first sign, a double-faced sign structure permitted by the Department under Permit Numbers AZ

363 and AE 401, the Department initially issued a "Notice of Violation-Maintenance of Nonconforming Signs" (DOT Case No. 99- 0263, DOAH Case No. 99-4905T), dated October 25, 1999, which alleged that the nonconforming sign had been "destroyed" and that, consequently, the Department proposed to cancel the permits. 1/ Respondent filed a formal response to the notice of violation which alleged that "the sign has not been destroyed as that term is defined in the applicable provisions of Chapter

14-10, Florida Administrative Code," and requested a formal administrative hearing.

Subsequently, confronted with the fact that Respondent had repaired and reerected the double-faced sign, which the Department perceived to have been destroyed and not subject to replacement, the Department issued a "Notice of Violation- Illegally Erected Sign" (DOT Case No. 99-0293, DOAH Case

No. 00-0134T), dated December 2, 1999, which ordered Respondent to cease all work on the structure and to remove it within

30 days. Respondent filed a formal response to this notice of violation which alleged that, since the sign was not "destroyed" (as contended by the Department in the initial notice of violation), the signs were properly reestablished, as permitted, and requested a formal administrative hearing. With regard to the relationship between the two charges, Respondent's request for hearing stated:

. . . This Petition . . . should be consolidated with DOAH Case Number 99-4905T (FDOT Case Number 99-0263). The factual issue in this request for administrative hearing is subordinate to the factual issue in DOAH Case Number 99-4905T. The DOAH Case Number 99-4905T, the factual issue is whether or not . . . [National's] sign has been "destroyed" . . . . In the event the issue in DOAH Case Number 99-4905T is resolved in favor of . . . [National], the issue in this . . . [case] becomes moot.

With regard to the second sign, a single-faced sign

structure permitted by the Department under Permit Number BT 386, the Department also initially issued a "Notice of Violation-Maintenance of Nonconforming Signs" (DOT Case No. 99- 0264, DOAH Case No. 99-4906T), dated October 25, 1999, which alleged that the noncomforming sign had been "destroyed" and that, consequently, the Department proposed to cancel the permit. 2/ To this notice, Respondent also filed a formal response which alleged that "the sign has not been destroyed as

that term is defined in the applicable provisions of Chapter 14- 10, Florida Administrative Code," and requested a formal administrative hearing.

Subsequently, confronted with the fact that Respondent had also repaired and reerected the single-faced sign, which the Department perceived to have been "destroyed" and not subject to replacement, the Department issued a "Notice of Violation- Illegally Erected Sign" (DOT Case No. 00-026, DOAH Case No. 00- 0826T), dated January 20, 2000, which ordered Respondent to remove the structure within 30 days. Again, Respondent filed a formal response and requested an administrative hearing. While not as precise as its response to the "Notice of Violation- Illegally Erected Sign" issued with regard to the first sign, it is apparent (given the pleadings, the parties stipulation, and Respondent's counsel's agreement) that Respondent's position

with regard to this notice of violation was the same as it had articulated with regard to the first sign. (See Transcript, at pages 14, 15, 64, and 65).

Given Respondent's requests for formal hearing, the Department forwarded each complaint to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the hearing Respondent had requested, and upon filing with DOAH the matters were, at the parties' request, consolidated for hearing. Thereafter, consistent with the pleadings, the parties agreed that resolution of the issue of whether the signs were "destroyed," as that term is defined by Rule 14-10.007(1)(d), Florida Administrative Code, would be dispositive of the Department's second complaint ("Notice of Violation-Illegally Erected Sign") that the signs

were improperly reerected and should be removed. (Transcript, at pages 14, 15, 64, and 65.) 3/

At hearing, Petitioner (Department), called Ralph J. Paciello, Fred J. Harper, and Juanice Hagan, as witnesses, and Petitioner's Exhibits 1-5, 5A, 6-12, and 14-16 were received into evidence, subject to the limitations noted on the record. 4/ Respondent called Hector Rivera, as a witness, and Respondent's Exhibits 1 and 2 were received into evidence,

subject to the limitations noted on the record.

A transcript of the hearing was filed May 1, 2000, and the parties were accorded 10 days from that date to file proposed recommended orders. The parties elected to file such proposals and they have been duly considered.

FINDINGS OF FACT

The parties

1. Petitioner, Department of Transportation (Department), is a state agency charged with, inter alia, the duty and responsibility to regulate outdoor advertising signs under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code.

2. Respondent, National Advertising Company, is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. Pertinent to this case, Respondent is the owner and operator of two nonconforming outdoor advertising sign structures located adjacent to the Florida Turnpike (SR 91) in Palm Beach County, Florida. The first structure is a double-faced sign permitted by the Department under Permit Numbers AZ 363 and AE 401 and located .83 miles south of mile post 85, on the west side of the turnpike. The second structure is a single-faced sign permitted by the Department under Permit Number BT 386 and located .7 miles south of mile post 85, on the west side of the turnpike.

3. In October 1999, both the single-faced and double-faced signs were damaged by Hurricane Irene. That damage included the severance of all upright supports (wood poles) for the sign structure, as well as other damage discussed infra. Respondent repaired and reerected the signs.

4. Here, the Department contends the nonconforming signs were "destroyed," as that term is defined by Rule 14- 10.007(1)(d), Florida Administrative Code, and may not be replaced. Respondent disagrees that the signs were "destroyed" and is, therefore, of the opinion that they were properly reestablished.

   The rule regarding maintenance and repair of nonconforming signs

   
   

5. With regard to the maintenance and repair of nonconforming signs, Rule 14-10.007, Florida Administrative Code, provides:

   1. The following shall apply to nonconforming signs:

      1. A nonconforming sign must remain substantially the same as it was as of the date it became nonconforming. Reasonable repair and maintenance, including change of advertising message, is permitted and is not a change which would terminate nonconforming rights . . . .

         
         

         * * *

         
         

         1. A nonconforming sign which is destroyed may not be reerected. "Destroyed" is defined as when more than 50% of the upright supports of a sign structure are physically damaged such that normal repair practices of

            the industry would call for, in the case of wooden sign structures, replacement of the broken supports and, in the case of a metal sign structure, replacement of at least 25% of the length above ground of each broken, bent or twisted support. However, in the event that such damage occurs, a sign will not be considered destroyed if the sign owner shows that the replacement materials costs to reerect the sign would not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction. The following shall be applicable in determining whether the replacement materials costs to reerect the sign exceed 50% of the value of the structural materials in the sign:

            1. Structural materials shall not include the sign face, any skirt, any electrical service, electric lighting or other non- structural items. Structural materials shall include any support brackets for the face, any catwalk, and any supporting braces or members of the sign structure.

            2. The value of the structural materials in the sign immediately prior to destruction shall be based on the cost of all structural materials contained in the sign as it was configured just prior to damage, and the cost of such materials shall be based on normal market cost as if purchased new on or about the date of destruction, without regard to any labor costs or special market conditions.

            3. The materials to be included in the replacement materials costs to reerect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction and shall not include any material that is repaired

         on-site, but shall include any material obtained from a source other than the sign itself, whether used, recycled, or repaired. The repairs to the sign shall be with like materials and shall be those reasonably necessary to permanently repair the sign in a manner normally accomplished by the

         industry in that area. The cost of such materials shall be as described in paragraph (1)(d)2 . . . .

         
         

         Here, with regard to the signs at issue, the proof is uncontroverted that all the upright supports of both sign structures were so severely damaged as to require replacement. Consequently, it has been shown that the signs were "destroyed" unless Respondent can establish "that the replacement materials costs to reerect the sign . . . [did] not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction."

         The replacement materials costs to reerect the double-faced sign

         
         

6. The value of the "instructional materials" in the double-faced sign immediately prior to destruction, based on all structural materials contained in the sign as it was configured just prior to damage, consisted of 10 wooden poles (upright supports) at $156.98 each; 28 wooden stringers (14 stringers per face) at $8.97 each; 2 galvanized steel catwalks (one on each side of the sign) at $1,400.00 each; and various angle steel supports for the catwalks, the value of which was not established of record. So configured, the value of the structural materials in the double-faced sign prior to destruction, excluding the value of the angle steel supports, totaled $4,620.96.

7. The materials cost to reerect the sign (by returning the sign to its configuration immediately prior to destruction) consisted of 10 wooden poles at $156.98 each and 28 wooden stringers at $8.97 each, a total cost of $1,820.96. Excluded from the materials cost to reerect the sign was the value of the catwalks and angle steel supports which were recycled from the sign itself and, as necessary, repaired on-site.

8. Comparing the value of the structural materials of the double-faced sign immediately prior to destruction (at least

   $4,620.96), with the replacement materials costs to reerect the sign, but excluding materials recycled on-site ($1,820.96), demonstrates that the replacement materials costs to reerect the sign did not exceed 50 percent of the structural materials in the sign, immediately prior to destruction. Consequently, under the provisions of Rule 14-10.007(1)(d), Florida Administrative Code, the double-faced sign is not considered destroyed, and was properly reerected.

   The replacement materials costs to reerect the single-faced sign

   
   

9. The value of the "structural materials" in the single- faced sign immediately prior to destruction, based on all structural materials contained in the sign as it was configured just prior to damage, consisted of 10 wooden poles at $156.98 each; 14 wooden stringers at $8.97 each; 1 galvanized steel catwalk at a minimum value of $700.00; 5/ and various angle

   steel supports for the catwalk, the value of which was not established of record. So configured, the value of the structural materials in the single-faced sign prior to destruction, excluding the value of the angle steel supports and valuing the catwalk at $700.00, was $2,395.38.

10. The materials costs to reerect the sign (by returning the sign to its configuration immediately prior to destruction) consisted of 10 wooden poles at $156.98 each, 14 wooden stringers at $8.97 each; and 1 galvanized catwalk at a minimum value of $700.00, a total cost of $2,395.38 (provided the value of the catwalk, as offered by Respondent, is accepted). Excluded from the materials costs to reerect the sign was the value of the angle steel supports which were recycled on-site.

11. Comparing the value of the structural materials of the single-faced sign immediately prior to destruction ($2,395.38), with the replacement materials costs to reerect the sign, but excluding materials recycled on-site ($2,395.38), demonstrates that the replacement materials costs to reerect the sign exceeded 50 percent of the structural materials in the sign, immediately prior to destruction. Consequently, under the provisions of Rule 14-10.007(1)(d), Florida Administrative Code, the single-faced sign was destroyed, and was could not properly be reerected.

    CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

13. Here, the Department proposed to cancel the permits for the double-faced sign (DOT Case No. 99-0263, DOAH Case No. 99-4905T), and the single-faced sign (DOT Case No. 99-0264, DOAH Case No. 99-4906T), and to order the removal of the reerected double-faced sign (DOT Case No. 99-0293, DOAH Case No. 00-0134T) and the single-faced sign (DOT Case No. 00-0026, DOAH Case No. 00-0826T), under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, based on its conclusion that such nonconforming signs had been destroyed and therefore could not be reerected. For reasons appearing more fully in the findings of fact, the proof supports the conclusion that the single-faced sign was "destroyed," as defined by Rule 14-10.007(1)(d), Florida Administrative Code. Consequently, the permit for the single-faced sign should be cancelled and the reerected single-faced sign should be removed. However, with respect to the double-faced sign, the proof supports the conclusion that it was not "destroyed," as defined by rule. Consequently, the double-faced sign permits may not be cancelled and reerection of the double-faced sign was lawful.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be rendered which adopts the foregoing Findings of Fact and Conclusions of Law; which dismisses the notices of violation with regard to the double- faced sign (DOT Case Nos. 99-0263 and 99-0293, DOAH Case

Nos. 99-4905T and 00-0134T); and which sustains the notices of violation with regard to the single-faced sign (DOT Case

Nos. 99-0264 and 00-0026, DOAH Case Nos. 99-4906T and 00-0826T),

cancels the single-faced sign permit, and orders the removal of the reerected single-faced sign.

DONE AND ENTERED this 1st day of June, 2000, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The despot Building

1230 Appalachia Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNOCO 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2000.

ENDNOTES

1/ The notice also charged, as an additional violation, that "[t]he sign has not been reasonably maintained, and is unsafe, unsightly, or insecure;" however, the Department also abandoned (withdrew) that charge at hearing.

2/ This notice also charged, as an additional violation, that [t]he sign has not been reasonably maintained, and is unsafe, unsightly, or insecure;" however, the Department abandoned (withdrew) that charge at hearing.

3/ In its proposed recommended order, filed post-hearing, Respondent suggests that the various complaints should be dismissed because "[t]he Department did not offer any evidence to demonstrate that SR 91 [The Florida Turnpike, the road adjacent to which the signs were erected] is an interstate or federal-aid primary highway" and, consequently, failed "to prove that the Department has regulatory jurisdiction over the subject signs." Notably, such contention is not apparent from the pleadings, the parties' stipulation, or Respondent's counsel's concessions.

(See Transcript, at pages 14, 15, 64, and 65.) Consequently, it is accepted that the signs at issue, previously permitted by the Department, are now nonconforming and if "destroyed," as that term is defined by Rule 14-10.007(1)(d), Florida Administrative Code, may not be reerected. Stated otherwise, as agreed by the parties, the only issue to be resolved is whether the signs were "destroyed" as that term is defined by rule.

4/ There was no document marked as Petitioner's Exhibit 13, and any reference to Petitioner's Exhibit 13 in the transcript should be considered a reference to Petitioner's Exhibit 14.

5/ According to Nector Rivera, Respondent's Operations Manager, the catwalk he used to replace the damaged catwalk on the single- faced sign was "a used catwalk," obtained from Respondent's surplus materials yard. (Transcript, page 102) Consequently, the value he placed on the replacement catwalk ($700.00) is not based on "normal market cost as if purchased new on or about the date of destruction," as required by the rule methodology.

However, any difference between the value of the catwalk new or used would not affect the conclusion reached in this case.

COPIES FURNISHED:

Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street

Hayden Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802

Thomas F. Barry, Secretary Department of Transportation 605 Suwannee Street

Hayden Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

Attention: James C. Myers, Clerk of Agency Proceedings

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street

Hayden Burns Building, Mail Station 58 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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-004906

Orders for Case No: 99-004906