STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER ADVERTISING, INC., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

Case No. 05-4398

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Milton, Florida, on August 23 and 24, 2006. The appearances were as follows:

APPEARANCES

Petitioner: Laura Joyner Nye, Esquire

Lindsay, Andrews, and Leonard, P.A. Post Office Box 586

Milton, Florida 32572

Respondent: J. Ann Cowles, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0485 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding is whether a bill board (sign) bearing permit number BB058 (Tag BB058) was

illegally modified as envisioned in Florida Administrative Code Rule 14-10.007(2), by having more than 50 percent of its materials replaced within a 24-month period and thus whether the permit for the billboard should be revoked.

PRELIMINARY STATEMENT

This cause arose upon the filing of a request for a formal proceeding filed by the above-named Petitioner with regard to a Notice of Intent to revoke Sign Permit issued by the Florida Department of Transportation (Department). The Department maintains that Florida Administrative Code Section 14-10.007(2) was violated by the Petitioner by its replacing more than 50 percent of the materials, in the sign, within a 24-month period after the sign was damaged by Hurricane Dennis, in Santa Rosa County.

The matter was referred to the Division of Administrative Hearings and ultimately the undersigned Administrative Law Judge. The case was initially consolidated with Case Nos. 05- 4378 and 05-4648 (assigned to other administrative law judges) by order of December 15, 2005. That Order was later vacated because the parties advised the Division that they had mistakenly requested consolidation. The Consolidation Order was therefore vacated, the cases were de-consolidated, and ultimately all were assigned to the undersigned Administrative Law Judge.

The cause came on for hearing as noticed regarding the above-stated issue. The Department called three witnesses and introduced 11 exhibits into evidence and the Respondent Salter called two witnesses, also relying on some of the Respondent Department's exhibits. Upon concluding the proceeding the parties ordered a transcript thereof and availed themselves of the right to submit proposed recommended orders. After two stipulated extensions of time on their submission, the Proposed Recommended Orders were timely filed. They have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner (Salter) is the owner and operator of an outdoor advertising sign structure, located on State Road 89 in Santa Rosa County, Florida. The sign is located approximately at .01 miles north of Metz Road. It is undisputed that the sign is a "non-conforming" sign and it is permitted with Tag Number BB058.

2. Hurricane Dennis struck Santa Rosa County on July 10, 2005. It damaged the sign. Prior to the storm the structural components of the sign consisted of two poles in the ground, or ground supports, two vertical supports (2 x 6) four braces, and two horizontal stringers. Salter's initial damage assessment, done by Mr. David McCurdy, was that one pole had broken and that therefore only one pole or ground support needed to be replaced.

   It was later discovered that the second ground support pole needed to be replaced.

3. The Petitioner ordered one new pole for a cost of

   
   

   $59.00 dollars. That pole was then cut into two pieces to replace both ground support poles for the sign. All other existing parts of the sign were re-used. No new lumber or other materials were purchased for repair of the sign.

4. Exhibit R-9 in evidence shows that the existing plywood vertical supports (wooden sign board) clearly appears to be an original portion of the sign and not new material. The three 2 x 6 horizontal stringers also clearly are re-used lumber from the original sign. One of them has a yellow tag on the end, commonly attached to pressure treated lumber when it comes from the lumber yard. The picture of the original, damaged sign depicted in R-7 also has the yellow tag attached on the end of the 2 x 6 stringer. That fact, together with the weathered appearance of that 2 x 6 stringer, as well as the other two stringers, shows that they are original material from the original sign.

5. The two vertical 2 x 6's appear to be original material as well. Respondent's Exhibit 9 is a photograph depicting the back of the repaired sign. The vertical 2 x 6 support on the left side of the sign, as depicted in photograph R-9, appears brighter or newer looking than the other 2 x 6 structural

   members. However, it has a visible edge which appears to show weathering. There are also several old nail holes in the board, as well as a bent nail protruding from the rear of the board between it and the plywood vertical support or face of the sign. It thus appears to be a used structural member as well.

   Additionally, the horizontal stringer and plywood board at the bottom of the sign, on which the name Salter is attached, is clearly a used portion of the original sign and not new material.

6. On balance it appears quite clearly that the only new structural members of the repaired sign are the two new poles which were cut from the original pole purchased for $59.00 dollars. Thus, the Petitioner has established by preponderant, persuasive evidence, including the depicition of the photographs in evidence, that the sign was repaired with substantially less than 50 percent new materials. In essence, it is now a sign composed of the original materials simply being hung on two new poles.

7. Moreover, for purposes of the rule cited below, concerning the definition of a "destroyed" sign, 50 percent of the ground support poles were destroyed (i.e. broken). Thus it could be deemed a destroyed sign. In that case, although the Department is not asserting revocation based upon the value of the materials used in the repair of the sign, the "Florida

   Construction Order" in evidence, together with the testimony of Mr. McCurdy and Mr. Crawley, establishes persuasively that less than 50 percent of the value of the materials in the sign before the storm damaged it, were replaced in the repair work or, (37 percent).

8. Thus by either measure of the manner of repair, the preponderant, persuasive evidence shows that the sign was properly repaired with less than 50 percent by quantity of new structural materials added to the sign and with less than 50 percent by value of new materials used in the sign repair, when compared to the value of the structural materials and members in the sign immediately prior to the storm damage.

9. In Summary, the Salter General Manager, David McCurdy, ordered one pole to repair the sign. He ordered no vertical supports, braces, or stringers for the repair effort. He oversaw the repairs himself and was at the site while the repairs were being made. The single pole was cut into two pieces so that two ground support poles were replaced. The materials shown lying on the ground in Exhibits R-6 and R-7, were otherwise re-assembled and re-hung on the new poles. Salter assessed the damage at 37 percent by the value measurement. The value of the structural materials in the sign prior to the storm damage was $157.00 dollars. The cost to repair the sign's structure immediately after the hurricane was

   $59.00, for purchase of the pole. Thus the replacement materials to effect the repair constituted 37 percent of the value of the materials prior to the damage and the only new material incorporated into the repair sign structure was the single, $59.00 pole cut into two pieces. Therefore, it has not been proven by preponderant evidence that the sign was illegally

   repaired.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

11. The Department by its Notice of Violation seeks to revoke state sign permit BB058 issued to the Petitioner for the subject sign structure. The Department contends that the sign was illegally modified pursuant to Florida Administrative Code Section 14.10-007(2), by having more than 50 percent of structural materials replaced in a 24-month period. Florida Administrative Code Section 14-10.007(2) provides as follows:

    Reasonable repair and maintenance of non- conforming signs, including change of advertising message, is permitted and is not a change which would terminate the non- conforming status. Reasonable repair and maintenance means the work necessary to keep the sign structure in a state of good repair, including the replacement in-kind of materials in the sign structure. Where replacement of materials is involved, such replacement may not exceed 50 percent of the

    structural materials in the sign within any 24-month period.

    'Structural Materials' are defined in sub- subparagraph (6)(a)2.A. below. . . .

    Structural Materials are all those materials incorporated into the sign as load-bearing parts, including vertical supports, horizontal stringers, braces, bracing wires, brackets, and catwalks. Structural materials do not include the sign face, any skirt, any electrical service, or electric lighting, except in cases where such items have been incorporated into the sign as load-bearing parts.

    
    

12. In summary, the above findings of fact, based upon preponderant, persuasive evidence, reveal that the Department has not established that the structural materials used in replacement of parts in the sign exceed 50 percent, by quantity, of the structural materials in the sign within a 24-month period. Thus the Department's allegations in support of its Notice of Violation have not been proven.

13. Moreover, Florida Administrative Code Rule 14- 10.007(6)(a) regarding a destroyed sign provides as follows:

    'Destroyed' means more than 50 percent 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 percent of the length above ground of each broken, bent, or twisted support. A sign will not be considered 'destroyed' within the meaning of this section under the following condition:

    . . . .

    2. If the permittee demonstrates that the replacement materials cost to re-erect the sign would not exceed 50 percent of the value of the structural materials in the sign, immediately prior to destruction. . .

    .

14. If it should be deemed that the sign was destroyed because one vertical ground support pole was broken and the other was seriously leaned and/or weakened, and that more than

50 percent of the upright supports were thus damaged enough for replacement, the persuasive proof adduced by the Petitioner shows that the above-quoted exemption to the requirement that a non-conforming sign permit must be revoked when the sign is destroyed should be applied. This is because, although more than 50 percent of the upright supports of the sign were physically damaged to such an extent that had to be replaced, the Petitioner has proven that the replacement materials used to re-erect the sign did not exceed 50 percent, by the value, of the structural materials in the sign immediately prior to its destruction. Thus, by both measures provided in Florida Administrative Code Rule 14-10.007 (2) and (6), whereby determination is made whether a non-conforming sign can continue to be permitted, the continuing permitability of the repaired sign has been established by the Petitioner. The sign was not illegally repaired.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED: That a final order be entered by the Department of Transportation finding that permit number BB058 for the subject sign structure should remain in effect.

DONE AND ENTERED this 19th day of January, 2007, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 19th day of January, 2007.

COPIES FURNISHED:

Laura Joyner Nye, Esquire

Lindsay, Andrews, and Leonard, P.A. Post Office Box 586

Milton, Florida 32572

J. Ann Cowles, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0485

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

Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0450

Denver Stutler, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Stop 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: 05-004398

Orders for Case No: 05-004398