CHARLIE CRIST GOVERNOR Sf Florida Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 April 19, 2007 P. Michael Ruff, Esquire Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 BILL SALTER ADVERTISING, INC. DOAH CASE NO.: 05-4378 and 05-4648 DOT CASE NO.: 05-401 and 05-361 Dear Mr. Ruff: Enclosed is a copy of the Final Order, filed April 19, 2007, in the above-styled case. Sincerely, Cc, es C. Myers Clerk of Agency Proceedings (850) 414-5393 jem:m Attachment(s) www.dot.state.fl.us Q % e) fe) Qo -~ =s ont S STEPHANIE C. KOPELOUSOS SECRETARY pots ~ STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Haydon Burns Building 605 Suwannee Street Tallahassee, Florida BILL SALTER ADVERTISING, INC. Petitioner, vs. DOAH CASE NOS.: 05-4378 05-4648 . DEPARTMENT OF TRANSPORTATION, DOT CASE NO.: 05-401 05-361 Respondent. / FINAL ORDER This proceeding was initiated by Petitioner, BILL SALTER ADVERTISING, INC. (hereinafter SALTER) filing requests for a formal administrative hearing regarding notices of intent to revoke outdoor advertising permits issued by Respondent, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT). The signs at issue had been damaged on July 10, 2005, by Hurricane Dennis and subsequently rebuilt. Notice of Intent to Revoke Sign Permit number 2423, tag number AF251, was issued on August 7, 2005, and Notice of Intent to Revoke Sign Permit number 12350, tag number BY334, was issued on October 26, 2005. SALTER’S Request for Formal Administrative Hearing as to tag number AF251 (DOT Case No. 05-361/DOAH Case No. 05-4648) was filed on August 19, 2005. SALTER’S Petition for Administrative Hearing as to tag number BY334 (DOT Case No. 05-401/DOAH Case No. 05- Page 1 of 9 4378) was filed on November 22, 2005. The matters were referred to the Division of Administrative Hearings (hereinafter DOAH) for formal administrative hearings and were consolidated under DOAH Case No. 05-4378 on March 2, 2006. A formal administrative hearing was held in Milton, Florida, on August 23-24, 2006, before P. Michael Ruff, a duly appointed Administrative Law Judge. Appearances on behalf of the parties were as follows: For Petitioner: Roy V. Andrews, Esquire Lindsay, Andrews & Leonard, P.A. Post Office Box 586 Milton, Florida 32472 For Respondent: J. Ann Cowles, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 At the hearing SALTER presented the testimony of Mike Crawley and David McCurdy. The DEPARTMENT presented the testimony of William O. Salter, Lynn Holschuh, Andrew White, David McCurdy, and Wayne Strickland, and introduced 13 exhibits into evidence. The transcript of the hearing was filed on September 19, 2007. Proposed Recommended Orders were filed by SALTER on September 29, 2006, and by the DEPARTMENT on October 13, 2006. Judge Ruff issued his Recommended Order on January 19, 2007. SALTER filed Petitioner’s Exceptions to Recommended Order on February 5, 2007. The DEPARTMENT filed no responses to SALTER’S exceptions. Page 2 of 9 STATEMENT OF THE ISSUE As framed by the Administrative Law Judge, the issues presented were: [W]hether an advertising billboard sign, bearing permit number (“Tag No.”) BY334, and a different sign bearing permit number AF251, were illegally rebuilt and whether sign number AF251 was destroyed and illegally rebuilt, given the standards in Florida Administrative Code Rule 14-10.007(6)(a). EXCEPTIONS TO THE RECOMMENDED ORDER SALTER’S exceptions to the Recommended Order are limited to tag number AF251 (sign permit number 2423) and address Findings of Fact, Paragraph 10 and Conclusions of Law, Paragraphs 21 and 22. SALTER’S first exception goes to Findings of Fact, paragraph 10, which stated: 10. This testimony and evidence is not accepted as credible.’ The photographs in evidence in the Respondent’s exhibits clearly show five new poles being added to the sign or a total replacement of the poles supporting the sign vertically. Instead of the two new sheets of plywood, the photographs clearly show considerably more than that amount of new plywood added to the sign. Additionally, the sign was constructed in a manner not in the same configuration as the original sign existed before the hurricane damage, because significantly fewer stringers were used. [Footnote added] SALTER correctly claims that the Administrative Law Judge’s finding that five (5) new poles were added to the sign is not supported by competent substantial evidence. Pursuant to Section 120.57(1)(1), Florida Statutes (2006), an agency has the authority to reject or modify the findings of fact set out in the Recommended Order. However, it cannot do so unless the agency ' The testimony and evidence found not to be credible was referred to in the preceding finding of fact and was put on by SALTER concerning the materials used, and the cost to repair the tag number AF251. Page 3 of 9 first determines from a review of the entire record, and states with particularity in its final order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Rogers v. Department of Health, 920 So. 2d 27, 30 (Fla. Ist DCA 2005). The record evidence, in its entirety, clearly established that no more than four (4) new poles were added to tag number AF251. SALTER’S exception to this finding is accepted and Paragraph 10 is modified accordingly. The same factual statement in Paragraph 12 of the Findings of Fact is likewise modified. This modification of Paragraphs 10 and 12 does not, however, affect the Administrative Law Judge’s finding that more than fifty (50) percent of the value of the structural materials in the sign, immediately prior to its destruction, was replaced with new materials. DEPARTMENT witness Lynn Holschuh testified that if all the materials in the sign were replaced except for one (1) pole it would be very unlikely that the cost of replacement materials would not exceed fifty (50) percent of the value of the structural materials. Both Ms. Holschuh and DEPARTMENT witness Andrew White testified that except for one (1) pole, all of the sign appeared to be new. Furthermore, SALTER has not taken exception to Findings of Fact, Paragraphs 11 and 12, which provide: 11. The Construction Order and Mr. Crawley’s testimony indicates that existing stringers were used. Even if that were the case, substantially fewer stringers were used in the sign than were used before. Moreover, the photographs in evidence show clearly that the stringers that were used in the repair work were all new pressure-treated materials. They clearly are new materials in appearance and are not existing materials which would exhibit weathering. Thus the 35 percent rebuild cost in structural material versus the $945.00 dollar [sic] value of all components of the sign, Page 4 of 9 immediately prior to the storm, is not deemed credible nor is the figure of $335.00 in purported rebuild costs. 12. The essential point here, in addition to more new materials being used than were represented by the Petitioner to have been used, is that the sign was not configured after the repair work in the same way it was before the storm damage, when it had legal status as a nonconforming sign which was permittable. Florida Administrative Code Rule 14-10.007(6)(a)C states: The materials to be included in the replacement material costs to re-erect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction, and shall include any material obtained from a source other than the sign itself, whether used, recycled, or repaired... Based upon the testimony of the Department’s witnesses, and particularly the evidence embodied in the photographs in the Respondent’s evidence, the new materials included in the sign substantially exceed those stated in Mr. Crawley’s testimony and in the Petitioner’s evidence, including the Construction Order. It is therefore determined that more than 50 percent of the value of the structural materials in the sign, immediately prior to destruction, was replaced with new materials. Thus, those materials would exceed 50 percent of the value of the structural materials in the sign as they existed immediately prior to destruction. Additionally, more than 50 percent of the upright supports of the sign structure was physically damaged (broken poles), such that normal repair practices of the industry would call for replacement of those broken supports. Rather than replacing three of the poles as the Petitioner’s witnesses maintained, the sign was rebuilt with five new poles. Parenthetically, it is thus noted that, under the provision of the proviso of the above-cited rule, at paragraph (6)(a), the sign may be deemed “destroyed” since more than 50 percent of its upright supports were damaged or broken. Following the foregoing findings of fact, the Administrative Law Judge included an endnote stating: Page 5 of 9 Based on the above findings of fact, the exception to the sign- being “destroyed” for purposes of the rule has not been met because preponderant persuasive evidence does not show that the cost of repairs was less than 50 percent of the value of the structural materials in the sign prior to the damage. The Department adduced persuasive evidence that the replacement coast [sic] to re-erect the sign exceeded 50 percent of the value of the structural materials in the sign immediately prior to destruction. SALTER has not taken exception to this endnote. The remainder of SALTER’S exceptions to Paragraph 10 as well as the exceptions to Conclusions of Law, Paragraphs 21 and 22, take issue with the Administrative Law Judge’s findings regarding the amount of new material used to rebuild tag number AF251, associated costs, and the reconfiguration of the sign. SALTER’S challenges are grounded upon a re- visitation of the Administrative Law Judge’s evaluation of the record evidence in terms of weight and credibility. It is well settled that an agency is not permitted to reweigh the evidence or to judge anew the credibility of the witnesses. Rogers, 920 So. 2d at 30. Accordingly, SALTER’S exceptions to the remainder of Findings of Fact, Paragraph 10, and Conclusions of Law, Paragraphs 21 and 22, are rejected. FINDINGS OF FACT 1. After a review of the record in its entirety, it is determined that the Findings of Fact in Paragraphs 1 through 9 and 11 of the Recommended Order are supported by competent substantial evidence and are adopted and incorporated as if fully set forth herein. 2. The portions of Paragraphs 10 and 12 of the Administrative Law Judge’s Findings of Fact which address the number of new poles added to tag number AF251, are modified to provide that no more than four (4) new poles were added to the sign structure. Paragraphs 10 and 12, as Page 6 of 9 modified, are supported by competent substantial evidence and are adopted and incorporated as if fully set forth herein. CONCLUSIONS OF LAW 1. The DEPARTMENT has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Chapters 120 and 479, Florida Statutes. 2. The Conclusions of Law in paragraphs 13 through 23 of the Recommended Order are wholly supported in law. As such, they are adopted and incorporated as if fully set forth herein. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that sign permit number 2423 (tag number AF251) issued to Petitioner, BILL SALTER ADVERTISING, INC., is hereby revoked. It is further ORDERED that the Petitioner, BILL SALTER ADVERTISING, INC., shall remove the outdoor advertising sign identified in the Respondent’s, DEPARTMENT OF TRANSPORTATION, Notice of Intent to Revoke Sign Permit number 2423 (tag number AF251) within thirty (30) days of this Final Order. It is further ORDERED that should the Petitioner, BILL SALTER ADVERTISING, INC.., fail to remove the outdoor advertising sign with sign permit number 2423 (tag number AF251), the Respondent, DEPARTMENT OF TRANSPORTATION, or its contractor, will remove the sign without further notice and assess the cost of removal against Petitioner, BILL SALTER ADVERTISING, INC., pursuant to Section 479.07(8)(d), Florida Statutes. It is further Page 7 of 9 ORDERED that the Notice of Intent to Revoke issued on October 25, 2006, by the Respondent, DEPARTMENT OF TRANSPORTATION, for sign permit number 12350 (tag number BY334) is hereby dismissed. DONE AND ORDERED this | 9th day of April, 2007. STEPHANIE C. ROPELOUSOS Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Leck WY of dad 102 Nada “Lod dad Page 8 of 9 NOTICE OF RIGHT TO APPEAL THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Susan Schwartz, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. 58 ' Tallahassee, Florida 32399-0458 The Honorable P. Michael Ruff Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Lynn Holschuh State Outdoor Advertising Administrator Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. 22 Tallahassee, Florida 32399 Roy V. Andrews, Esquire Lindsay, Andrews & Leonard, P.A. Post Office Box 586 Milton, Florida 32472 Page 9 of 9

Docket for Case No: 05-004378

Orders for Case No: 05-004378