STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-5381T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on March 24, 2000, in Deland, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jodi B. Jennings, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

For Respondent: Aileen M. Reilly, Esquire

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

STATEMENT OF THE ISSUE

Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.

PRELIMINARY STATEMENT

This proceeding began on November 8, 1999, when Petitioner, Department of Transportation, issued a Notice of Violation - Maintenance of Nonconforming Signs in which it proposed to revoke Permit No. BP844, which authorized Respondent, National Advertising Company, to maintain an outdoor advertising sign "[o]n U.S. 1, 0.341 miles north of Florida Memorial Gardens" in Brevard County, Florida. As a ground, Petitioner alleged that the "sign has been destroyed."

In a paper filed on December 6, 1999, Respondent requested a formal hearing to contest the agency's decision. The matter was forwarded by Petitioner to the Division of Administrative Hearings on December 29, 1999, with a request that an Administrative Law Judge be assigned to conduct a hearing.

By Notice of Hearing dated January 13, 2000, the case was scheduled for final hearing on March 24, 2000, in Deland, Florida. On March 23, 2000, the case was transferred from Administrative Law Judge Daniel S. Manry to the undersigned.

At the final hearing, Petitioner presented the testimony of Juanice Hagan, assistant statewide administrator for outdoor advertising; James B. Anderson, an outdoor advertising inspector; Peter B. Wright, administrator of outdoor advertising for District 5; and Patrick B. Simms, code enforcement officer for Brevard County, Florida. Also, it offered Petitioner's

Exhibits 1-7, which were received in evidence. Respondent

presented the testimony of its operations supervisor, Billy Nichols. Also, it offered Respondent's Exhibit 1, which was received in evidence. Finally, the undersigned has taken official recognition of the most current version of Rule 14- 10.007, Florida Administrative Code.

The Transcript of the hearing was filed on April 21, 2000. Proposed Findings of Fact and Conclusions of Law were filed by Respondent and Petitioner on April 28 and May 1, 2000, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this controversy, Petitioner, Department of Transportation (DOT), seeks to revoke a permit (No. BP844) for an off-premise outdoor advertising sign owned by Respondent, National Advertising Company (Respondent), an entity now known as "Infinity Outdoor," on the grounds that the original sign was destroyed by a hurricane in October 1999, the sign has lost its nonconforming status, and Respondent cannot lawfully rebuild the structure.

2. In response to these charges, Respondent contends that after the sign was damaged, unknown persons stole the damaged structural pieces that were going to be used in part to rebuild the sign. Under a theory first disclosed at hearing, Respondent

   went on to contend that if those materials were still available, it could qualify for a seldom, if ever, used exception found in Rule 14-10.007(1)(d), Florida Administrative Code, which would otherwise allow it to reconstruct the sign. That rule provides in part that a sign will not be considered destroyed if the owner can demonstrate that "the replacement material costs to reerect the sign would not exceed [fifty percent] of the value of the structural materials in the sign, immediately prior to destruction." Using that provision, Respondent argues that much of the sign's structure could have been rebuilt with the now- stolen materials, and the remaining "replacement material costs" would not exceed the threshold in the rule.

3. The sign was erected in 1968 before spacing requirements for signs were first adopted in 1972; therefore, unless it is destroyed, the sign can continue to qualify for nonconforming status as long as it remains substantially the same as it was as of the date it became nonconforming. Because the sign is situated on U.S. Highway 1 in Brevard County, a federal-aid primary highway, and another permitted sign lies approximately

   200 feet away, under current spacing requirements, a sign cannot be rebuilt on the same site. This is because current spacing requirements prohibit two signs from being closer than 1,000 feet apart on a federal-aid primary roadway.

4. The sign in question is located adjacent to U.S. Highway 1, 0.341 miles north of Florida Memorial Gardens in

   Brevard County, Florida. In October 1999, Hurricane Irene tracked northward along the eastern coast of Florida causing extensive wind damage, including substantial damage to Respondent's sign.

5. Photographs received in evidence as Petitioner's Composite Exhibit 3 show the condition of the sign on October 26, 1999, or shortly after it was damaged by the hurricane. Among other things, two of the five support poles (which were buried to a depth of eight feet) were "splintered" approximately two to three feet above ground level, while the other three were "knocked over" and "broken" at ground level. The wooden facing of the sign "had been knocked up against a pine tree" and the wooden plywood "panels [on which the sign message is printed] were split." The "stringers," whose numbers were variously described in the record as nine and sixteen, and which measure

   2 x 4 x 20 feet and support the backside of the structure between the poles, were also damaged. The condition of the sign is corroborated by similar photographs taken on October 18 and 22, 1999, by a code enforcement officer of Brevard County.

6. In the judgment of the DOT inspector who visited the site shortly after the hurricane, none of the damaged structural materials (poles and stringers) could be reused due to the amount of damage caused by the hurricane's winds. However, the inspector was unable to assign a replacement cost for any of

   those structural materials, or the replacement value of the sign immediately prior to its destruction.

7. On an unknown date, but after the photographs were taken by DOT on October 26, 1999, Respondent's operations manager, Billy Nichols (Nichols), instructed a subcontracting crew to inspect each of the company's signs and to drop off at each sign location "what they thought we may have needed" to repair the signs. After inspecting the sign in question, the crew deposited five brand new poles at the site.

8. Respondent takes the position that it always intended to use a combination of old and new materials, rather than all new materials, to repair the damaged sign. The date on which this decision was made by Respondent is not apparent in the record. In addition, despite a lack of clarity in the record, in its post-hearing filing, Respondent represents that the new poles were deposited at the site before the damaged materials were removed. However, it can be reasonably inferred from the evidence that based on the subcontractor's actions, Respondent originally intended to replace virtually the entire structure since five new poles were dropped off at the site of the sign; after a Citation was issued, Respondent apparently decided to reerect the sign under the theory proposed at hearing.

9. Sometime after November 8, 1999, when DOT issued its Citation, Respondent maintains that much of the debris from the site, including the damaged poles and stringers, was unlawfully

   removed by unknown persons, resulting in Respondent being forced to rebuild the sign with all new materials. The new poles, however, were not removed and remained at the site. Because of the Citation, no work has occurred pending the outcome of this proceeding.

10. In applying the terms of the rule relied upon by Respondent, DOT ascertains the cost of the sign and the replacement materials by utilizing cost data from retail stores, such as Home Depot or Lowe's, on a date as close to the date of destruction as is possible. In this case, that date would fall in September or October 1999. In addition, even if a sign owner decides to repair his sign with used or recycled materials, those materials would still be valued as if they were new. Further, only items such as supporting braces (stringers) or members of the sign structure (support poles) qualify as structural materials. This means that the sign facing would not be considered a structural component within the meaning of the rule. Finally, any old materials from the original sign that were reused would not be a part of the overall cost.

11. Apart from the cost issue, in reconstructing the sign, the owner must return the sign to substantially the same configuration as before the damage. Thus, any change in the height or width of the sign facing, the number of feet that the sign sits above the ground, the structural safety of the sign, or the size of the replacement materials, might constitute a

    substantial change and prohibit reerection. In the case at bar, the testimony establishes that if Respondent proposes to change the height of the sign, the type of structural materials used, or the number of support poles, this would constitute a substantial change in the sign and disqualify Respondent from utilizing the exception in the rule.

12. Although the rule does not specifically require such information, to prove that materials were stolen by unknown persons, historically DOT has required that the owner submit a police report confirming that materials were stolen. In this case, no police report was ever filed by Respondent, nor did it file a claim with its insurance company for the value of the materials allegedly stolen.

13. Respondent submitted cost data from three local "supplier[s]" confirming that the value of the structural components of the sign just prior to its being damaged was not greater than $1202.00. This figure was derived by taking the cost of five new poles at $202.00 per pole, or $1010.00, and sixteen new stringers at a cost of $12.00 per stringer, or

    $192.00. Respondent's suggestion that the cost of plywood for the new sign facing ($636.00) should also be counted as a structural material has been rejected since that component does not qualify as such a material under the rule.

14. Respondent's operation supervisor (Nichols) offered two alternatives for repairing the sign. First, he suggested that by

    lowering the structure below its previous height, he could reerect the sign using only two new poles. This alternative, however, would substantially change the sign's configuration and violate the terms of the rule. Second, in order to keep the sign at its original height, Nichols stated that he would purchase three new poles and "stub" two of the damaged poles by adding two more stringers. The second option would cost only $630.00, but under this alternative, the value of the replacement materials would exceed fifty percent of the cost of the structure ($1202.00) just prior to the sign being damaged. Then, too, the record shows that by making this type of repair, the sign facing would be weaker, making it less safe; its wind load would be changed; and the sign height would be lower. Thus, these modifications would constitute a substantial change.

    CONCLUSIONS OF LAW

    
    

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

16. As the party seeking to revoke Respondent's permit, Petitioner bears the burden of proving by a preponderance of the evidence that the allegation in the charging document is correct. Fla. Dep't of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). That allegation is that "[t]he sign has been destroyed" through an Act of God, that is, a hurricane. The undersigned rejects a contention by Respondent that the agency

    must prove its case by clear and convincing evidence. The single administrative case decided in 1989 and cited by Respondent for this proposition stands alone among literally dozens of administrative decisions throughout the years adopting a less stringent burden of proof. Moreover, this matter is not a "penal or licensure disciplinary" proceeding within the meaning of Section 120.57(1)(j), Florida Statutes (1999), and unlike those types of cases, does not impose a clear and convincing burden.

17. Because Respondent's sign was erected before spacing requirements were enacted in 1972, the sign "must remain substantially the same way it was as of the date it became nonconforming." Rule 14-10.007(1)(a), Florida Administrative Code. A nonconforming sign which is subsequently "destroyed" may not be reerected unless the sign "is destroyed by vandalism or other criminal or tortious act"; in that event, it can be "reerected in kind." Rule 14-10.007(1)(f), Florida Administrative Code. However, "a sign will not be considered destroyed if the sign owner shows that the replacement materials costs to reerect the sign would not exceed [fifty percent] of the value of the structural materials in the sign, immediately prior to destruction." Rule 14-10.007(1)(d), Florida Administrative Code.

18. Even if the undersigned accepts the premise that the damaged structural materials were taken without Respondent's permission, and that Respondent always intended to use the

    damaged materials to repair its sign, Respondent is still barred from reerecting the sign for two reasons. First, the value of the replacement structural materials required to reerect the sign ($630.00) exceeds fifty percent of the value of the structural materials in the sign ($1202.00), immediately prior to its destruction. Second, under either replacement scenario offered by Respondent, the character of the sign will be changed in a substantial way. Therefore, as a destroyed nonconforming sign, it cannot be reconstructed.

19. In its post-hearing filing, Respondent has also contended that DOT failed to prove by competent evidence that

    U.S. Highway 1 is a federal-aid primary highway, and thus DOT lacks regulatory jurisdiction over the sign. This argument rests on the notion that the testimony of DOT representatives on this issue was hearsay in nature and not a basis on which to make a finding in Petitioner's favor. Finding of Fact 3, which confirms the federal status of the highway, is based on the testimony of two DOT representatives, who presumably had personal knowledge of this fact. Moreover, because the road carries the designation of "U.S. Highway 1," a well-known Florida highway which traverses the east coast of Florida, this logically implies that it is a "federal" road and has been designated by the department as a part of the "federal-aid primary highway system." See Section 479.01(7), Florida Statutes (1999). Finally, no contrary evidence was submitted at the hearing, and counsel made no

    contemporaneous objection to the testimony. Therefore, the argument has been rejected.

20. Because the nonconforming sign has been destroyed by an Act of God, and may not be reconstructed, the challenged permit should be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by National Advertising Company under Permit No. BP844 has been destroyed, is nonconforming, and cannot be reerected.

The permit should also be revoked.

DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this day 12th of May, 2000.

COPIES FURNISHED:

Thomas F. Barry, Secretary Department of Transportation

Attn: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

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

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

Mail Station 58

Tallahassee, Florida 32399-0450

Pamela S. Leslie, General Counsel Department of Transportation

605 Suwannee Street

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: 99-005381

Orders for Case No: 99-005381