STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these consolidated cases on May 3, 2000, at Vero Beach, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jodi B. Jennings, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Aileen M. Reilly, Esquire

Livingston & Reilly, P.A.

612 East Colonial Drive, Suite 350 Post Office Box 2151

Orlando, Florida 32802 STATEMENT OF THE ISSUES

As to DOAH Case No. 99-4902T, whether the outdoor sign bearing permit AF330 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt.

As to DOAH Case No. 00-0398T, whether the outdoor sign bearing permit AF330 was illegally rebuilt.

As to DOAH Case No. 99-4903T, whether the outdoor sign bearing permit BF075 was a permitted, nonconforming sign that was destroyed and cannot be rebuilt.

As to DOAH Case No. 00-0397T, whether the outdoor sign bearing permit BF075 was illegally rebuilt.

PRELIMINARY STATEMENT

Respondent is the owner of two outdoor advertising signs located in Indian River County, Florida, adjacent to Interstate

95. One sign bears permit number AF330 and the other bears permit number BF075. For ease of reference these signs will be referred to as sign A and sign B, respectively. In October 1999, both signs were damaged by a hurricane. Petitioner thereafter issued two notices of violation, one for each sign, asserting that each had been destroyed and could not be rebuilt. The basis for Petitioner's assertion that the signs could not be rebuilt was its determination that each sign, prior to its destruction, was a nonconforming structure within the meaning of Section 479.01(14), Florida Statutes. Thereafter, Respondent rebuilt each sign, and Petitioner issued two additional notices of violation asserting that each sign had been illegally rebuilt and must be removed. In response to each notice of violation, Respondent requested a formal administrative hearing, the matter

was referred to the Division of Administrative Hearings, and this consolidated proceeding followed.

At the final hearing, Petitioner presented the testimony of four witnesses and presented 14 exhibits, each of which was admitted into evidence. Respondent presented no witnesses and no exhibits.

A Transcript of the proceedings was filed May 30, 2000. Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent 1/ is the owner of two outdoor advertising signs, both of which are located in Indian River County, Florida, adjacent to Interstate 95. Both signs were erected in 1971 pursuant to sign tag numbers AF330 and BF075, respectively. Sign A is located .49 miles south of milepost 153. Sign B is located .67 miles south of milepost 155.

2. Section 479.01(14), Florida Statutes, defines the term "nonconforming sign" as follows:

   (14) "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was

   lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions.

   
   

3. When the signs were erected in 1971, the area in which both signs are located was a part of unincorporated Indian River County. In 1990, the area in which both signs are located was annexed into the City of Fellsmere, Florida. Prior to the annexation, the area was zoned by Indian River County under the agricultural designation. That zoning designation has not been changed by the City of Fellsmere and the area remained zoned agricultural at the time of the final hearing. At all times relevant to this proceeding an outdoor advertising sign has not been an allowable use in an area zoned agricultural.

4. There is an outdoor advertising sign less than 1,000 feet south of sign B, and there is an outdoor advertising sign less than 1,000 feet north of sign B. Both of these other signs are on the same side of the Interstate as sign B. When sign B was erected in 1971, the spacing requirements for signs along an Interstate Highway was 1000 feet, meaning that a proposed sign could not be within 1000 feet of an existing sign. Since 1984, Section 479.07(9)(a), Florida Statutes, has provided that outdoor advertising signs along an Interstate Highway must be at least 1500 feet apart.

5. When initially constructed both sign A and sign B consisted of six wooden poles and wooden stringers. In October 1999, both sign A and sign B were destroyed by a hurricane. The hurricane knocked sign A completely down, the stringers were damaged, and all of the poles were snapped at ground level. Similarly, the hurricane knocked sign B completely down, the stringers were damaged, and four of the six poles were snapped at ground level.

6. On October 29, 1999, Petitioner issued the Notices of Violation that serve as the basis for DOAH Case No. 99-4902T and DOAH Case No. 99-4903T. Both Notices alleged that the respective sign has been destroyed and may not be re-erected.

   2/

   
   

7. Subsequent to the damage to sign A, Respondent erected

   
   

   another sign at the same location as that previously permitted for sign A. The new structure also consisted of six wooden poles and wooden stringers. Respondent attached permit tag AF330 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0398T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed.

8. Subsequent to the damage to sign B, Respondent erected another sign at the same location as that previously permitted for sign B. The new structure also consisted of six wooden

   poles and wooden stringers. Respondent attached permit tag BF075 to that structure. On December 8, 1999, Petitioner issued the Notice of Violation that serves as the basis for DOAH Case No. 00-0397T. That Notice of Violation asserts that the rebuilt sign is illegal and must be removed.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

10. Petitioner has the burden of proving by a preponderance of the evidence its allegations pertaining to these two signs. See Florida Department of Transportation v.

    J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and

    
    

    Section 120.57(1)(j), Florida Statutes.

    
    

11. Section 479.07(9)(a), Florida Statutes, imposes the following duty on Petitioner:

    1. Administer and enforce the provisions of this chapter and the agreement between the state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and federal regulations in effect as of the effective date of this act.

       
       

12. Up until their destruction in October 1999, both sign A and sign B were nonconforming structures within the meaning of Section 479.01(14), Florida Statutes, because the zoning

    classification of agricultural did not include outdoor advertising as a permitted use.

13. Additionally, sign B was nonconforming because it did not meet spacing constraints for outdoor advertising signs along Interstate Highways.

14. Rule 14-10.007(1)(d), Florida Administrative Code, provides, in pertinent part, as follows:

    (d) A nonconforming sign which is destroyed may not be reerected [sic]. "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 structure, replacement of the broken supports. . . .

    
    

15. Petitioner established that each sign at issue in this proceeding is a nonconforming sign within the meaning of Section 479.01(14), Florida Statutes. Petitioner also established that each sign was destroyed within the meaning of Rule 14- 10.007(1)(d), Florida Administrative Code, by a hurricane in October 1999. Pursuant to Rule 14-10.007(1)(d), Florida Administrative Code, neither sign can lawfully be rebuilt. Consequently, it is concluded that each rebuilt sign should be removed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order requiring the removal of each sign at issue in this proceeding.

DONE AND ENTERED this 17th day of July, 2000, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 17th day of July, 2000.

ENDNOTES

1/ Respondent, formerly known as Outdoor Systems, is now known as Infinity Outdoor.

2/ Both Notices also allege that each respective sign has not been reasonably maintained, and is unsafe, unsightly, or insecure. Petitioner stipulated that it was no longer alleging those grounds as a basis for requiring the removal of the signs.

COPIES FURNISHED:

Jodi B. Jennings, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Aileen M. Reilly, Esquire Livingston & Reilly, P.A.

612 East Colonial Drive, Suite 350 Post Office Box 2151

Orlando, Florida 32802

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

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: 00-000398

Orders for Case No: 00-000398