STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT and RUTH STOKY, )

)

Appellants, )

)

vs. ) Case No. 00-1136

)

COUNTY OF MONROE, )

)

Appellee. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone on December 8, 2000, before Patricia Hart Malono, a duly-designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Appellants: Kurt Von Gonten, Esquire

Hershoff, Lupino & Mulick, LLP 90130 Old Highway

Tavernier, Florida 33070

For Appellee: Karen K. Cabanas, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040 STATEMENT OF THE ISSUE

This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") approving the decision of the Monroe County Planning Department to deny the application of the Appellants, Robert and Ruth Stoky ("the

Stokys"), for a building permit for an "after-the-fact replacement of a 400-square-foot sign." The instant appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as the Appellee in this case. The ultimate issue presented in this appeal is whether Resolution No. P80-99 of the Planning Commission should be affirmed, reversed, or modified.

PRELIMINARY STATEMENT

In or about June 1999, the Stokys submitted an application to the Planning Department for an after-the-fact sign permit to repair a pole sign located on the highway in Key Largo, Florida, advertising the Sundowners and Senor Frijoles restaurants ("Sundowners/Senor Frijoles sign"). In a letter dated June 28, 1999, the Planning Department denied the application. The Planning Department determined that the sign at issue was a non- conforming sign pursuant to Section 9.5-404(c)(1)(a), Monroe County Land Development Regulations, due to its size and due to the fact that there was another ground-mounted sign on the same parcel of property. The Planning Department further determined, from photographs taken before and after Tropical Storm Mitch,

1/ that the sign had been substantially damaged during the storm and that the sign had been completely rebuilt, in

violation of Section 9.5-407(c), Monroe County Land Development Regulations, which provides:

Sec. 9.5-407. Nonconforming signs.

Lawfully established signs in place on the effective date of this chapter which are not in compliance with the division may continue only as follows:

* * *

(c) No permit shall be issued for repair or reconstruction of any sign structure where such work would be more than fifty

(50) percent of the replacement cost of the sign. Neither shall the cumulative costs of repair or reconstruction exceed fifty (50) percent of the replacement cost of any non- conforming sign. The planning department shall maintain an independently verified schedule of the replacement cost of signs.

The Stokys were advised in the denial letter of their right to appeal the decision of the Planning Department to the Planning Commission.

The Stokys timely filed their Application for Administrative Appeal to Planning Commission. The basis for the appeal was set forth as follows:

On Permit Number 99-3-1002 the applicant indicated that poles (4 out of 5) and stringers were replaced after the storm.

The sign faces were taken down before the storm and put back up after the poles and stringers were in place. The Stokys disagree with the analysis by Monroe County Planning Department. The permit was denied. In the denial letter the applicant was advised that the basis for the denial was

that the sign was damaged beyond 50% of its value. This is also disputed.

Further, Section 9.5-407. Non-Conforming Signs (c) is the guiding code on the repair work of existing non-conforming signs. The determining factors are the value of the billboard (sign). In a memorandum regarding the [sic] Section 9.5-407(c), Marathon Lighting & Sign created the valuations to be used. This memorandum has been used by the Monroe County Planning Department, Plantation Key Office.

Monroe County has not properly appraised the Stoky sign. Moreover, the County has not even performed a good faith estimate of the billboard. Florida courts have consistently found that in determining the value of a billboard, the value shall be maximized using any standard appraisal techniques, including but not limited to the income approach, market approach, or cost approach. . . .

Under no circumstances has the fair value of the Stoky "repair" exceeded 50% of the maximum value of the billboard. Lastly, but importantly, it is entirely unreasonable and arbitrary for the County to classify hurricane preparation - taking the billboard faces down to protect the public from flying debris - and then a subsequent reinstallation of the billboard as a "repair". . . .

(Citations omitted.) The Planning Commission held a public hearing on November 17, 1999, during which it considered the Stokys' appeal of the Planning Department's decision to deny their application for an after-the-fact sign permit.

At the hearing, the Planning Commission heard the sworn testimony of staff members Arbie Odum and Sally Linck and of

Appellants' witnesses Robert Stoky, Jr., Paul Valet, George Eager, and Ruth Stoky. The Planning Commission also received photographs into evidence and heard the arguments of the representatives of the Stokys and of the County. In addition, the staff report dated October 14, 1999, was read into the record. In pertinent part, the staff report, to which are attached three photographs, provides the following as the basis for its recommendation that the Planning Commission deny the Stokys' appeal of the Planning Department's decision to deny the application for a sign permit:

The subject property consists of three waterfront restaurants located on a 35,768 square foot (0.82 acre) parcel in a Mixed Use land use district. The application being appealed is for repair of a non- conforming sign damaged by Tropical Storm "Mitch" on November 5th/6th, 1998.

* * *

2. . . . The Planning Department has calculated the value of the sign with figures based on the "Sign Replacement Costs" memorandum dated March 26, 1999, from the Director of Planning. Application #99- 3-1002 was submitted April 20, 1999, nearly one month after the effective date of the memo. The memo states "These costs are to be used for calculating value prior to damage as well as for replacement items". [sic] The estimated value for ground- mounted wood signs are based on $12.25 per square foot per pace [sic]. Based on these figures, the replacement costs for a single faced, wood sign is $4,900.00 (one 400 Sq. Ft. face X $12.25/Sq. Ft.) and five poles installed are estimated at $583.00

($76.60/pole + $40.00/hole X 5 poles) for a total value of $5483.00. Photographic evidence shows the entire sign was destroyed, with the exception of one pole ($116.60). Therefore, the estimated cost of repairs is $5366.40 [$5483.00 - $116.60), or 98% of the value of the sign, which exceeds that allowed by Section 407(c).

* * *

Photographs taken by the Monroe County Code Enforcement Inspectors immediately after Tropical Storm "Mitch" (dated November 6, 1998) show the sign substantially (greater than 50% of replacement cost) damaged. In fact, the photograph shows a debris pile with only one pole from the sign still standing. Two photographs taken four days later (dated November 10, 1998) of the same sign show it completely rebuilt. No permits were issued, nor could have been issued, for this reconstruction. Copies of these photographs are submitted as Exhibit #1 (a and b) showing the reconstructed sign, and Exhibit #2 showing the destroyed sign.

* * *

The applicant contends that the sign faces were removed in preparation for Tropical Storm "Mitch", then replaced after the storm. The Planning Department disagrees with this based on the fact that four of the five support poles were broken off. It is highly unlikely that five poles with only stringers attached have enough surface area to enable the wind to snap off four of the poles. A Code Enforcement inspector (Arbie Odum) on the site the day after the storm observed portions of the sign face in the debris pile in Exhibit #2. The Code Enforcement inspector (Sally Linck) photographing the replacement sign (Exhibit #1) was told by Ruth Stoky that the sign experienced no damage resulting from the storm. Photographs taken by Code

Enforcement on February 24, 1998 (Exhibit #3) less than nine months before

Tropical Storm "Mitch", show the sign faces to be different from those after the storm, specifically the distance of the border on the right side and the color of the curved line and dots on the Senor Frijoles sign.

The "turn here" and "Cactus Jacks Pub" are absent on the reconstructed sign. Based on these facts, the Planning Department believes the sign faces were not removed prior to the storm, but rather replaced after the storm damage occurred.

At the conclusion of the hearing, the Planning Commission approved the Planning Department's decision to deny the Stokys' application by a three-to-two vote, and its action was memorialized in Resolution No. P80-99, which provides in pertinent part:

WHEREAS, the Planning Commission was presented with the following evidence, which by reference is hereby incorporated as a part of the record of said hearing:

1. Building permit application #99-3-1002 for an after-the-fact replacement of a 400 square foot sign, received by the Monroe County Planning Department on April 20, 1999, including structural plans by Keys Engineering Services, Inc., seal by Daryle Osborne. 2/

   
   

2. Staff report prepared by Donny Lang, Senior Planner, dated October 14, 1999; and

   
   

3. Application for Administrative Appeal to the Planning Commission, including Exhibit "A" received October 14, 1999; and

   
   

4. Photographs of the subject sign labeled Staff Exhibits #1 and #2; 3/ and

5. Photographs of storm debris at the subject site labeled Appellant Exhibits #1, #2, and #3; and

   
   

6. Affidavit by Steve Lohmayer labeled Appellant Exhibit #4; and

   
   

7. Sworn testimony by the Growth Management Staff; and

   
   

8. Comments by Garth Coller, Planning Commission Counsel; and

   
   

9. Sworn testimony by the appellant and on behalf of the appellant; and

WHEREAS, the Planning Commission was presented with the following evidence, which by reference is hereby incorporated as a part of the record of said hearing: 4/

1. Based on the application submitted, we find that the sign face measures four hundred (400) square feet on a parcel with

   143 lineal feet of U.S. 1 frontage. Therefore, we conclude that the sign is a non-conforming sign per Section 9.5- 404(c)(1) of the Monroe County Code.

   
   

2. Based on testimony presented and photographic evidence, we find that there are two ground-mounted signs on the property, including this application for the after-the-fact replacement sign. Therefore, we conclude that the sign is non-conforming per Section 9.5-404(c)(1) of the Monroe County Code which states: "Every non- residential developed parcel of land shall be allowed the following ground mounted signage: a. One (1) illuminated, ground mounted sign . . ."; and

   
   

3. Based on staff testimony and photographic evidence, we find that four of five supporting poles and all sign stringers were destroyed, and all face panels were removed. We also find that the only

   structure remaining was one supporting pole. Therefore, we conclude that the non- conforming sign structure was substantially damaged and may not be replaced per

   Section 9.5-407(c) of the Monroe County Code; and

   
   

4. Based on the March 26, 1999, Sign Replacement Costs memorandum, we find that the costs listed in the memorandum should be used for calculating value both prior to damage as well as for replacement items. Using this memorandum, the value of the sign prior to damage was $5,483.00 and the cost to repair it was $4,900.00. Therefore, we conclude that the sign was substantially (more than 50%) damaged; and

   
   

5. Based on the photographic evidence submitted, we find that the poles, stringer, and the bottom border of the pre-storm sign (Staff Exhibit #1) were present in the debris pile (Appellant Exhibits #1 and #2) resulting from Tropical Storm Mitch. Therefore, we conclude that the substantial damage resulted from Tropical Storm Mitch; and

   
   

6. Based on permitting history of the property and photographic evidence (Staff Report Exhibits #1 and #3), we find no evidence of a permit for repainting and/or a logo change. Therefore, we conclude that the non-conforming sign was modified beyond that allowed by Section 9.5-407(a) of the Monroe County Code, without benefit of a permit; NOW THEREFORE,

BE IT RESOLVED BY THE PLANNING COMMISSION OF

MONROE COUNTY, FLORIDA, that the preceding Findings of Fact and Conclusions of Law support their decision to DENY the request of Robert Stoky and Ruth Stoky for Planning Department approval of building permit #99- 3-1002 for an after-the-fact replacement of a 400 square foot sign.

Resolution No. P80-99 was signed on January 12, 2000.

On or about February 10, 2001, the Stokys filed an Application for an Appeal to the Hearing Officer pursuant to Article XIV, Monroe County Code, Sections 9.5-535 - 9.5-542, the Hearing Officer Appellate Article. In its application, the Stokys appealed the decision of the Planning Commission in Resolution No. P80-99 approving the Planning Department's decision to deny the after-the-fact sign building permit requested by the Stokys. In their Initial Brief, the Stokys identified their substantive points on appeal as follows:

1. The Imputation of the Cost of the Entire Face was Contrary to the Evidence and Departed from the Essential Requirements of Law.

   
   

2. The Commission's Method of Valuation was Inconsistent with the County's Own Methodology and Contrary to the Evidence.

   
   

3. The Characterization of Stoky's Taking Down and Re-Attaching of the Sign Face as Repair and/or Reconstruction Departs from the Essential Requirements of Law.

   
   

4. The Introduction of Issues Outside of the Record Denied Stoky Procedural Due Process.

   
   

5. The Application of the March 22, 2000, [sic] Memorandum in the Case at Bar Renders Monroe County Code Section 9.5-407(c) Fatally Defective.

This case was submitted for decision on the record compiled by the Planning Commission Coordinator in accordance with

Section 9.5-537, Monroe County Code; on the arguments presented in the Stokys' Initial and Reply Briefs; on the arguments presented in Monroe County's Answer Brief; and on the arguments presented by counsel for the parties during oral argument on December 8, 2000.

DISCUSSION

The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Article XIV, Monroe County Code. The hearing officer's order in such an appeal "may affirm, reverse, or modify the order of the planning commission." Section 9.5- 540(b), Monroe County Code. The scope of the hearing officer's review under that article is as follows:

The hearing officer's order may reject or modify any conclusion of law or interpretation of the Monroe County land development regulations or comprehensive plan in the planning commission's order, whether stated in the order or necessarily implicit in the planning commission's determination, but he may not reject or modify any findings of fact unless he first determines from a review of the complete record and states with particularity in his order that the findings of fact were not based upon competent substantial evidence or that the proceeding before the planning commission on which the findings were based did not comply with the essential requirements of law.

Id. The hearing officer's final order shall be the final

administrative action of Monroe County. Section 9.5-540(c), Monroe County Code.

In De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), the court discussed the meaning of "competent substantial evidence" and stated:

We have used the term "competent substantial evidence" advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. [Citations omitted.] In employing the adjective "competent" to modify the word "substantial," we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. [Citations omitted.] We are of the view, however, that the evidence relied upon to sustain the ultimate findings should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the "substantial" evidence should also be "competent."

In addition, a hearing officer acting in his or her appellate review capacity is without authority to reweigh conflicting testimony presented to the Planning Commission or to substitute his or her judgment for that of the Planning Commission on the issue of the credibility of witnesses. See Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Shaw

v. Shaw, 334 So. 2d 13, 16 (Fla. 1976); Citibank, N.A. v. Julien

J. Studley, Inc., 580 So. 2d 784, 785-86 (Fla. 3d DCA 1991).

The discussion of the findings of fact and conclusions of law set forth in Resolution No. P80-99, is organized to correspond to the separate paragraphs in the resolution, as follows:

Paragraphs 1 and 2

In paragraphs 1 and 2 on page 2 of Resolution No. P80-99, the Planning Commission concluded that the Sundowners/Senor Frijoles sign is a non-conforming sign subject to the limitations set forth in Section 9.5-407, Monroe County Code. The Stokys do not dispute this conclusion or the underlying findings of fact included in these paragraphs.

Paragraphs 3, 4, and 5 5/

The parties agree that the repair and reconstruction of non-conforming signs is governed by Section 9.5-407(c), Monroe

County Code, which provides, inter alia, that a permit cannot be

issued to repair or reconstruct a non-conforming sign if the cost of such repair or reconstruction exceeds 50 percent of the replacement cost of the sign. It is uncontroverted that the Sundowners/Senor Frijoles sign was repaired or reconstructed after Tropical Storm Mitch. Therefore, the decision as to whether the permit to repair the sign should be issued depends

on whether the cost of repairing or reconstructing the sign exceeded 50 percent of the sign's replacement cost.

Competent substantial evidence in the record supports the Planning Commission's findings of fact in paragraph 3 on page 2 of Resolution No. P80-99 that four of the sign's five supporting poles and all of the sign's stringers were destroyed, that one supporting pole was the only portion of the sign's structure left standing, and that all of the panels of the sign face were removed. However, the Planning Commission's conclusion in paragraph 3 on page 2 of Resolution No. P80-99 that the sign "may not be replaced per Section 9.5-407(c) of the Monroe County Code" does not follow from the findings of fact, and this conclusion is rejected for this reason. The conclusion that the sign was "substantially damaged" is also rejected because there is no reference in Section 9.5-407(c), Monroe County Code, to "substantial damage" or to the "replacement" of a non-conforming sign, and, therefore, the Planning Commission's conclusion in paragraph 3 cannot be derived from this code subsection.

Competent substantial evidence in the record supports the Planning Commission's finding of fact in paragraph 5 on page 3 of Resolution No. P80-99 that the sign's poles and stringers were present in the debris pile accumulated on the Stokys' property after Tropical Storm Mitch. There is, however, no competent substantial evidence in the record to support the

Planning Commission's finding that "the bottom border of the

pre-storm sign (Staff Exhibit #1)" (emphasis added) was also present in the debris pile. This finding was based on the testimony of Arbie Odum and on the exhibits he consulted during his testimony.

Mr. Odum took a photograph of the Sundowner/Senor Frijoles sign in August 1996, 6/ which shows a yellow border on the bottom of the sign face that included the words "TURN RIGHT." Mr. Odum compared this photograph to a photograph of the debris pile on the Stokys' property taken in November 1998, shortly after Tropical Storm Mitch. 7/ Mr. Odum identified in the photograph of the debris pile a piece of yellow plywood on which the contiguous letters "H" and "T" were painted, and he concluded that these were the last two letters in the word "RIGHT" that were painted on the yellow panel shown in the August 1996 photograph. Mr. Odum further concluded that the panel in the debris pile was part of the sign face shown in the August 1996 photograph. Mr. Odum also testified that the photograph of the Sundowner/Senor Frijoles sign taken by Sally Linck on November 10, 1998, 8/ four days after Tropical Storm Mitch, showed that the sign face was different in several respects from the sign shown in the August 1996 photograph.

Mr. Odum's testimony is not competent substantial evidence on which to base a finding that the yellow plywood panel found

in the debris pile after Tropical Storm Mitch was a panel from the "pre-storm" sign that existed immediately prior to the storm, in November 1998. His testimony establishes only that the yellow border was a portion of the sign face as it appeared in August 1996. Furthermore, the uncontroverted evidence provided in the testimony of Robert Stoky, Jr., and of Ruth Stoky and in the photograph that shows on its face the date of February 24, 1998, 9/ establishes that the Sundowners/Senor Frijoles sign face was completely repainted some months prior to Tropical Storm Mitch. It is clear from the photograph taken on February 24, 1998, that the yellow border at the bottom of the sign face bore the words "TURN HERE," rather than "TURN RIGHT." Therefore, although the contiguous "H" and "T" were part of the border on the sign face in August 1996, there is no evidence to support a conclusion that the yellow plywood in the debris pile was part of the sign face immediately prior to Tropical Storm Mitch.

The Planning Commission could properly conclude that the damage to the sign resulted from Tropical Storm Mitch from its finding in paragraph 5 that the sign's poles and stringers were present in the debris pile accumulated on the Stokys' property after Tropical Storm Mitch. However, for the reasons stated above, the Planning Commission's conclusion that the sign suffered "substantial damage" is irrelevant to the question of

whether a permit for the repair or reconstruction of the Sundowners/Senor Frijoles sign should be issued.

Competent substantial evidence in the record supports the Planning Commission's finding in paragraph 4 on page 2 of Resolution No. P80-99 that the Planning Department's March 26, 1999, memorandum establishing sign replacement costs should be used for calculating both the replacement cost of the sign and the costs of repair or reconstruction. The evidence is uncontroverted that this memorandum was in effect at the time the Stokys submitted their application for the sign permit at issue herein. This finding is also consistent with the provision in Section 9.5-407(c), Monroe County Code, that the costs of repair or reconstruction as well as the replacement cost of a sign are to be determined by reference to an independently verified schedule to be maintained by the County.

There is, however, no competent substantial evidence in the record to support the Planning Commission's finding of fact in paragraph 4 on page 2 of Resolution No. P80-99 that the replacement cost of the sign, prior to the damage, was

$5,483.00. Although this is the amount included in the October 14, 1999, staff report, the staff member preparing the report failed to include in his calculations the cost of the

stringers on which the sign face was mounted, which consisted of ten 16-foot-long, 2" x 6" stringers and six 8-foot-long, 2" x 6"

stringers. The staff member's failure to include these items was, perhaps, the result of the omission in the memorandum of wooden stringers as a cost item. 10/ Accordingly, the replacement cost of the sign cannot be calculated accurately from the information in the record. The most that can be said is that the replacement cost of the Stokys' sign would have been more than the $5,483.00 derived from the March 26, 1999, memorandum.

Of more significance, however, is the Planning Commission's calculation that the cost to repair the Stokys' sign after Tropical Storm Mitch was $4,900.00. First, the $4,900.00 cost of repair included in paragraph 4 on page 2 of Resolution

No. P80-99 was apparently derived form the October 14, 1999, staff memorandum, but it does not represent the entire cost of repair identified in the report, which was $5,366.40, nor does it include the cost of repairing the four poles and the wooden stringers to which the sign face was attached. 11/ Rather, as noted in the staff report and as set forth in the March 26, 1999, memorandum on sign replacement costs, the $4,900.00 represents only the replacement cost of a painted single-faced wooden sign.

Second, implicit in the Planning Commission's finding in paragraph 4 on page 2 of Resolution No. P80-99 that the cost of repairing the Sundowners/Senor Frijoles sign included $4,900.00

for the cost of a single-faced wooden sign is the finding that the entire wooden sign face was destroyed and reconstructed after Tropical Storm Mitch, as part of the repair of the sign's structure. Although the Planning Commission's determination that the sign face was destroyed and reconstructed underlies the findings of fact and conclusions of law found in paragraphs 3, 4, and 5 of Resolution No. P80-99, the Planning Commission did not include a finding to this effect in the resolution. 12/

The only explicit finding in Resolution No. P80-99 regarding the sign face panels was the finding in paragraph 3 on page 2 that "all face panels were removed."

Although there is competent substantial evidence in the record to support the finding that the face panels were removed, the record does not contain competent substantial evidence to support a finding that the wooden face panels were destroyed and reconstructed. The uncontroverted testimony of Robert Stokes, Jr., Ruth Stokes, and, by affidavit, of Steve Lohmayer establishes that the existing sign faces were removed from the sign poles and stringers and placed on the ground near the sign in anticipation of Tropical Storm Mitch. The uncontroverted testimony of these witnesses also establishes that, after the four poles and the wooden stringers that were destroyed in the storm were replaced, the same sign faces that were removed before Tropical Storm Mitch were touched-up with paint and put

back up on the new poles and wooden stringers. As discussed above, the testimony of Mr. Odum that he saw part of the sign face in the debris pile after the storm is not consistent with the evidence contained in the photograph of the debris pile and in the photograph of the Sundowners/Senor Frijoles sign taken on February 24, 1998, and there is no other testimony or photographic evidence in the record to support a finding that the sign face was destroyed during Tropical Storm Mitch and reconstructed after the storm.

The County argues in its Answer Brief that, even if the same sign face was put back up on the new poles and stringers after Tropical Storm Mitch, the wooden sign face was still "reconstructed," as that term is used in Section 9.5-407(c), Monroe County Code, and as defined in "Webster's" dictionary. This argument is unpersuasive. The definition of "reconstruct" included in the Answer Brief is "to construct again; rebuild; make over (2) to build up, from remaining parts." Pursuant to this definition and to common usage, a wooden sign face would be reconstructed only if the wooden sign face were rebuilt. The record is devoid of evidence that the Stokys' rebuilt the Sundowners/Senor Frijoles sign face after Tropical Storm Mitch. Rather, the Planning Commission could appropriately find from the evidence in the record only that the Stokys installed four new poles and 16 new stringers for the sign structure.

Because the Planning Commission's implicit finding of fact that the sign face of the Sundowners/Senor Frijoles sign was destroyed and reconstructed is not supported by competent substantial evidence, the Planning Commission's conclusion in paragraph 4 on page 2 of Resolution No. P80-99 that the Sundowners/Senor Frijoles sign was "substantially (more than 50%) damaged" is rejected. 13/ The total cost of the repairs cannot be calculated using the March 26, 1999, memorandum establishing sign replacement costs because, as noted above, the memorandum does not include valuations for wooden stringers.

14/ However, the reconstruction of the four wooden poles was valued at $466.40 in the October 14, 1999, staff report, and the uncontroverted evidence establishes that the only other parts of the sign structure reconstructed by the Stokys' after Tropical Storm Mitch were the wooden stringers, which consisted of 208 linear feet of 2" x 6" wooden boards. It is, therefore, reasonable to conclude that the total cost of repairing the Sundowners/Senor Frijoles sign after Tropical Storm Mitch was significantly less than 50 percent of the $5,483.00 replacement cost of the sign calculated by the Planning Department.

Consequently, the Planning Commission's conclusion in paragraph

4 of Resolution No. P80-99 that "the sign was substantially (more than 50%) damaged" is rejected.

Paragraph 6

The Planning Commission found in paragraph 6 of Resolution No. P80-99 that the Stokys had not obtained a permit to repaint and/or change the logo of the Sundowners/Senor Frijoles sign.

Implicit in this finding is a finding that the Sundowners/Senor Frijoles sign had been repainted and/or the logo changed at some point in time. Both the explicit and implicit findings of fact in paragraph 6 are supported by competent substantial evidence in the record.

Based on these findings, the Planning Commission concluded that the Sundowners/Senor Frijoles sign was "modified beyond that allowed for non-conforming signs in Section 9.5-407(a) of the Monroe County Code, without benefit of a permit."

Section 9.5-407, Monroe County Code governs non-conforming signs and subsection (a) provides:

For ground-mounted signs, changes of copy, including type style and color changes, may be performed provided that a permit is obtained and provided that the name of the businesses or establishments depicted by the sign are not changed. Changes of copy involving the name of the businesses or establishments depicted by the sign shall only be performed if the sign is brought into compliance with the requirements of this division.

The Planning Commission's conclusion that the sign was "modified beyond that allowed" by this section could only be based on a factual finding by the Planning Commission that the name of the

business had been changed at the time the sign was repainted. There is no competent substantial evidence in the record to support such a finding. Indeed, the evidence shows that the sign was repainted sometime between August 1996 and February 24, 1998, that the names of the businesses were the same on both signs, and that the names on the sign were the same as those on the sign on November 10, 1998. Therefore, the Planning Commission's conclusion that the "sign was modified beyond that allowed by Section 9.5-407(a) of the Monroe County Code, without benefit of a permit" is rejected. 15/

Based on the record developed before the Planning Commission at its November 17, 1999, hearing and for the reasons stated above, the findings of fact and conclusions of law included in and implicit in Resolution No. P80-99 are rejected or modified as follows:

In paragraph 3, the Planning Commission's conclusion that "the sign structure was substantially damaged and may not be replaced per Section 9.5-407(c) of the Monroe County Code" is rejected.

In paragraph 4, the Planning Commission's finding of fact that "the value of the sign prior to damage was $5,483.00" is modified to state that "the replacement value of the sign prior to the damage during Tropical Storm Mitch was in excess of

$5,483.00." The Planning Commission's finding of fact that "the

cost to repair it [the sign] was $4,900.00" is rejected. The Planning Commission's conclusion that "the sign was substantially (more than 50%) damaged" is rejected.

In paragraph 5, the Planning Commission's finding of fact that "the bottom border of the pre-storm sign . . . w[as] present in the debris pile . . . resulting from Tropical Storm Mitch" is rejected. The Planning Commission's conclusion that "the substantial damage resulted from Tropical Storm Mitch" is modified to state that "the damage resulted from Tropical Storm Mitch."

In paragraph 6, the Planning Commission's conclusion that "the non-conforming sign was modified beyond that allowed by Section 9.5-407(a) of the Monroe County Code" is rejected.

DECISION

Based on the foregoing, the decision of the Monroe County Planning Commission to deny the request of Robert and Ruth Stoky for approval of building permit #99-3-1002, set forth in Monroe County Planning Commission Resolution No. P80-99, is REVERSED.

Pursuant to Section 9.5-540(c), Monroe County Code, this Final Order is "the final administrative action of Monroe County." It is subject to judicial review by common law petition for writ of certiorari to the circuit court in the appropriate judicial circuit.

DONE AND ORDERED this 2nd day of February, 2001, in

Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 2nd day of February, 2001.

ENDNOTES

1. Tropical Storm Mitch hit Key Largo, Florida, on November 6 and 7, 1998.

   
   

2. The record transmitted to the Division of Administrative Hearings does not contain a copy of this application, but it was not necessary to refer to this application in the preparation of this order.

   
   

3. The photographs introduced as exhibits of the County and the photographs attached to the staff report dated October 14, 1999, have been commingled in the record of the Administrative Appeal transmitted to the Division of Administrative Hearings. The staff report appears as pages 116 through 120, with two exhibits attached and identified as pages 121 and 122; the report refers on page 119 to a third exhibit, which is included in the record on page 125. This exhibit is mistakenly identified as the County's Exhibit 3.

   
   

4. The undersigned assumes that this paragraph was included in error, since it appears that the following paragraphs 1 through

   6 set forth the Planning Commission's findings of fact and conclusions of law.

5. Because of the way in which the Planning Commission has set forth its findings of fact and conclusions of law, it is not possible to address separately the findings and conclusions in each of these paragraphs.

   
   

6. The photograph, which shows on its face a date of August 8, 1996, is included in the record as County Exhibit 1 at page 123.

   
   

7. Mr. Odum identified this photograph as the Stokys' Exhibit 1, which is at page 113 of the record.

   
   

8. This photograph is Exhibit 1(b) to the October 14, 1999, staff report, and is at page 121 of the record.

   
   

9. This photograph is Exhibit 3 to the October 14, 1999, staff report, but it has been separated in the record from the exhibits to the report and is at page 125.

   
   

10. The March 26, 1999, memorandum provides in the last paragraph that the costs of items not included in the memorandum would be determined by reference to the "the median costs as listed in the latest Marshall and Swift valuation." This reference source was not attached to the copy of the March 26, 1999, in the record at page 107, and neither the County nor the Stokys introduced the latest Marshall and Swift valuation into evidence at the hearing before the Planning Commission.

    
    

    The Stokys included as appendices to their Initial Brief a copy of the index and of the relevant pages of the November 1997 edition of Marshall and Swift. Although this document is not part of the record in this case and may not form a basis for modifying a finding of fact in the Planning Commission's Resolution No. P80-99, it is interesting to note that the replacement cost of 2" x 6" wooden board is $2.00 per linear foot, so that the replacement cost of the ten 16-foot-long, 2" x 6" boards used as stringers in the Sundowners/Senor Frijoles sign would be valued at $320.00, and the replacement cost of six 8-foot-long, 2" x 6" boards used as stringers in the sign would be valued at $96.00.

    
    

11. See endnote 14, supra.

    
    

12. It should also be noted that the Appellee asserted repeatedly in its Answer Brief that the Planning Commission based its decision in this case on its finding that the Sundowners/Senor Frijoles sign face was destroyed by Tropical Storm Mitch and replaced with a new sign face.

13. It must be reiterated that Section 9.5-407(c), Monroe County Code, does not include the term "substantially damaged." This code section provides that a permit shall not be issued for repairs or reconstruction of a non-conforming sign if the cost of such repairs or reconstruction exceeds 50 percent of the replacement cost of the sign.

    
    

14. Nor can recourse be had to the values set forth in the November 1997 Marshall and Swift's included in the appendices to Appellants' Initial Brief because that document is not part of the record before the Planning Commission.

    
    

15. Even had this conclusion of law been correct, the Planning Commission could not base its decision to approve the Planning Department's denial of the Stokys' application for an after-the- fact permit to repair the Sundowners/Senor Frijoles sign on their previous failure to obtain a permit to repaint the sign, as required by Section 9.5-407(a), Monroe County Code. See Jesus Fellowship, Inc. v. Miami-Dade County, 752 So. 2d 708, 710 (Fla. 3d DCA 2000)("Past violations are not a basis to deny a present pending application that meets the code standards.").

COPIES FURNISHED:

Kurt Von Gonten Esquire Hershoff, Lupino & Mulick, LLP 90130 Old Highway

Tavernier, Florida 33070

Karen K. Cabanas, Esquire Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Judith Chambers

Planning Commission Coordinator County of Monroe

Planning Department

2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Docket for Case No: 00-001136

Orders for Case No: 00-001136