STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, a 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: Roy V. Andrews, 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 concern whether 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).

PRELIMINARY STATEMENT

This case arose upon the filing of request for an administrative proceeding by the above-named Petitioner. The requests for hearing are in response to notices of intent to revoke sign permits which the Florida Department of Transportation (Department) issued as to each sign. The DOT took the position that sign tag number BY334 should have the related permit revoked because it was a non-conforming sign which had been illegally rebuilt for purposes of the above-cited rule. The Department took the position, with regard to sign tag number AF251, that an alleged destruction of it, as a non- conforming sign pursuant to that same rule, had occurred. The Petitioner requested formal hearings concerning each sign permit. The matter were referred to the Division of Administrative Hearings, and ultimately to the undersigned Administrative Law Judge.

The Division of Administrative Hearings assigned Case Number 05-4648 to the matter concerning sign permit number AF251, and assigned Case Number 05-4378 to the dispute concerning proposed revocation of sign permit BY334. Initially

the parties requested that Case Number 05-4378 be consolidated with a different case, 05-4398, which was done. Later it was determined that the request to consolidate these two cases was mistaken, they were unconsolidated, and Case Number 05-4378 was consolidated with Case Number 05-4648. That consolidated case, as well as Case Number 05-4398, were heard by the undersigned Administrative Law Judge.

The cause came on for hearing as noticed. The Department called five witnesses at hearing as to the matter of revocation of sign permit BY334. It introduced 15 exhibits into evidence. The Petitioner called one witness. The Department called two witnesses related to the proposed revocation of sign permit AF251 and introduced 13 exhibits into evidence. The Petitioner called two witnesses. Upon conclusion of the hearing the parties elected to have the matter transcribed and agreed to an extended briefing schedule which was granted. The parties filed Proposed Recommended Orders which have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

Findings of Fact Concerning Tag Number BY334

1. The Petitioner Bill Salter Advertising, Inc. (Petitioner, Salter) owns and operates an outdoor advertising sign business and outdoor advertising sign structures, as pertinent hereto, in Santa Rosa County, Florida. The subject

   sign, bearing Tag Number BY334, is located on State Road 89 in Santa Rosa County, Florida, approximately .01 mile north of Jones Avenue. For purposes of the authority cited and discussed below the subject sign structure is a "non conforming sign."

2. Hurricane Dennis came through Santa Rosa County and damaged sign BY334 on July 10, 2005. Some two or three days later the general manager of Salter, David McCurdy, visited the sign site to assess the damage. Three ground supports had broken and the sign had been laid over on the ground. Prior to its being blown over by the storm, it had three ground supports, eight sheets of plywood as vertical supports and 10 stringers. All three ground supports and some of the stringers were broken. Some of the stringers were left over from an additional sign face that had been previously removed from the permitted sign. The plywood vertical supports were intact, however. Mr. McCurdy assessed the damage and completed a "Florida Construction Order". The Construction Order indicated that eight sheets of plywood were in the original sign. The plywood sheets were still nailed to the structure two or three days after the storm. On July 17, 2005, there was plywood contained in a bundle of material next to the sign. The bundle was created because the Petitioner had sent a work crew to the site to pick up the material on the ground and bundle it to prevent theft or vandalism.

3. The Construction Order provided for the existing plywood and the existing stringers to be re-used in making repairs to the sign. Additionally, Mr. McCurdy ordered materials for repairs based on the assessment which had been documented in the Construction Order. He engaged a company called "Masterbuilt" as a contractor to make repairs to sign BY334. That contractor requested no additional materials to be provided by the Petitioner and was required to perform the work according to the Construction Order and Mr. McCurdy's instructions. It had no discretion to purchase or use any additional material. The sign was rebuilt in accordance with the Construction Order.

4. The Petitioner assessed the damage to the sign at 47 percent. The value of the structural materials in the subject sign structure immediately prior to the July 2005 storm damage was $611.00. The cost to repair the structure immediately after the hurricane was $291.00. The replacement materials to repair the sign constituted 47 percent of the value of the materials in the sign immediately prior to the storm damage. The only new materials used in the repair of the sign structure were three poles.

5. There is no question based upon the persuasive evidence adduced that more than 50 percent of the upright supports of the sign structure were damaged such that replacement of them was

   necessary. However, the preponderant, persuasive, evidence does not establish that the replacement costs to re-erect sign BY334 and repair it exceeded 50 percent of the value of the structural materials in the sign as to their value immediately prior to the storm destruction. The Petitioner's evidence and testimony is credible and persuasive to the effect that the replacement materials amounted to 47 percent of the value of the materials in the sign immediately prior to the damage caused by the storm. Tag Number AF251

6. The Petitioner owns and operates an outdoor advertising sign located on Interstate 10 in Santa Rosa County, Florida,

   0.238 miles east of County Road 89. That sign structure is permitted with state permit number AF251. There is no dispute that the subject sign structure is a "non-conforming" sign.

7. The sign was damaged by Hurricane Dennis on July 10, 2005. The General Manager of the Petitioner, David McCurdy, inspected the sign several days after the storm. Three support poles had been broken and some of the sign face had been detached and leaned back on vegetation behind the sign. Prior to the storm the sign had five ground supports, 10 vertical supports (plywood), no braces and it had stringers composed of

   30 pieces of 2 x 6 x 12 foot lumber. Mr. McCurdy ordered materials for the repair. Mike Crawley, sales manager for Salter testified that he delivered three poles to the site. The

   Petitioner's testimony indicates that existing vertical supports were reused (plywood supports) with the exception of two new pieces of plywood. Mr. Crawley maintains he did not deliver any

   2 x 6 boards to the site and that the contractor did not request any additional materials.

8. The Petitioner assessed the damage repair value at 35 percent of the value of the structural materials of the sign as they existed immediately prior to the July 2005, storm damage. The total value of those materials before the storm damage was assessed by the Petitioner at $945.00 and so indicated on the Construction Order. That figure included 10 sheets of plywood for vertical supports at $22.00 per sheet and 30, 2 x 6 x 12- foot boards at $8.00 a each, used as stringers, as well as five existing wooden pole vertical supports at $97.00 dollars each for a total pre-damage value of $945.00 in structural materials.

9. The Construction Order and Mr. Crawley's testimony indicates that the value of the materials used to re-build the sign was 35 percent of that $945.00 figure. He indicated in the Construction Order, at Respondent's Exhibit five, that three pole ground supports were added, that two vertical sheet plywood supports were added and that existing stringers were used with no new materials for stringers being purchased. The two sheets of plywood purportedly purchased total $44.00 dollars and the three poles purportedly purchased totaled $291.00 dollars. This

   is a total rebuild cost of $335.00 dollars according to the Petitioner. The Petitioner thus maintained that the only new materials incorporated into the repaired sign structure were three poles and two new sheets of plywood.

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 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.

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 re-build cost in structural material value versus the $945.00 dollar value of all components of the sign, immediately prior to the storm, is not

    deemed credible nor is the figure of $335.00 in purported re- build 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 materials 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 in 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.1/

    CONCLUSIONS OF LAW

    
    

13. 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).

14. By Notice of Violation as to permit and sign number BY334, the Department seeks to revoke sign permit BY334 alleging that the non-conforming sign was illegally re-built pursuant to Florida Administrative Code Rule 14-10.007(6)(a).

15. By The Notice of Violation as to permit and sign number AF251, the Department seeks to revoke the permit, under the above-referenced rule because the Department contends that it was destroyed and that a destroyed, non-conforming sign may not be re-erected. For a wooden sign "destroyed" means that 50

    percent of the upright supports is damaged such that replacement is necessary.

16. Florida Administrative Code Rule 14-10.007(6)(a), provides:

    1. A nonconforming sign may continue to exist so long as it is not destroyed . . .

       
       

       1. '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. A

          sign will not be considered 'destroyed' within the meaning of this section under the following conditions:

          
          

          1. If the permittee demonstrates that the replacement materials costs to re-erect the sign would not exceed 50 percent of the value of the structural materials in the sign, immediately prior to destruction. The following shall be applicable in determining the value of the structural materials in the sign:

             
             

             1. Structural materials are all those materials incorporated in to 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.

          
          

       2. The value of the structural materials in the sign immediately prior to destruction shall be based on the costs of all structural materials contained in the sign as it was configured just prior to damage, and the costs of such materials shall be

          based on normal market costs as if purchased new on or about the date of destruction, without regard to any labor costs or special market conditions.

          
          

       3. The materials to be included in the replacement materials 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, but shall not include any material from the sign itself that is repaired on-site. The repairs to the sign shall be with like materials, both in type and size, and shall be those reasonably necessary to permanently repair the sign . .

          .

17. The Department has the burden to establish the allegations contained in its notices of intent by preponderant evidence. In the event the Respondent Department establishes that the non-conforming sign was "destroyed," as defined in the above-quoted rule, the Petitioner has the burden of establishing that it meets the exception contained in Florida Administrative Code Rule 14-10.007(6)(a)2.

18. There is no dispute that all three poles that held sign BY334 erect were destroyed by the storm. Therefore, it met the definition of "destroyed" contemplated by the above-quoted rule.

19. The Petitioner, however, based on the above findings of fact and preponderant, persuasive evidence, established that this sign and its repair met the exception established in the

    above-quoted rule. The Petitioner showed that the costs of replacement materials did not exceed 50 percent of the value of the structural materials in the sign immediately prior to the storm damage for the reasons delineated in the above findings of fact.

20. It is also undisputed that three of the five poles that held sign AF251 erect were destroyed by the storm. Therefore, it also met the definition of "destroyed" as contemplated in the above rule.

21. The preponderant, persuasive evidence adduced by the Respondent, however, with regard to sign AF251, clearly shows that new materials were incorporated in sign AF251, which clearly exceeded 50 percent of the value of the materials in the sign as they existed immediately prior to the storm damage. Moreover, the photographs in evidence reveal that the sign was repaired in such a way, and with such materials, that it was not returned to its configuration immediately prior to destruction, as required by sub-paragraph (c) of the above-quoted rule. This is chiefly because of the use of significant fewer two-inch dimension lumber materials (stringers) in the repaired sign than were used in the original sign. This approach served to retard the value to be ascribed to replacement materials and thus was a way to aid the Petitioner's effort to keep its repair costs

    under 50 percent of the value of the materials in the sign as they existed immediately prior to the storm damage.

22. Moreover, as found above, considerably more new plywood material was placed in the sign through the repair work than the construction order, and the testimony elicited by the Petitioner, indicates. The photographic evidence presented by the Respondent, together with the Respondent's witness testimony clearly shows that five poles, or all five, were replaced, rather than three as maintained by the Petitioner. Clearly, the value of the materials placed in sign AF251 exceeded 50 percent of the value of the structural materials in the sign immediately prior to the storm. Thus, the notice of violation as to sign AF251 has been proven by the Department and the permit should be revoked.

23. The Department has not proven that the sign BY334 was repaired with materials which exceeded 50 percent of the value of the structural materials as they existed immediately prior to the storm damage, nor did it prove that that sign was not returned substantially to its configuration as it existed immediately prior to the destruction, for purposes of sub- paragraph "c" of the above-quoted rule. Thus, the permit BY334 should not be revoked.

RECOMMENDATION

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

RECOMMENDED: That a final order be entered by the Florida Department of Transportation revoking sign permit number AF251, and that the Notice of Intent to Revoke sign permit number BY334 be dismissed and that sign permit BY334 remain valid.

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.

ENDNOTE

1/ 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 to re-erect the sign exceeded 50 percent of the value of the structural materials in the sign immediately prior to destruction.

COPIES FURNISHED:

Roy V. Andrews, 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

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399-0450

Denver Stutler, Secretary Department of Transportation

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: 05-004648

Orders for Case No: 05-004648