Judges: W. MATTHEW STEVENSON
Agency: Department of Transportation
Latest Update: Dec. 23, 1986
Summary: Petitioner DOT failed to establish that the cost of material to repair Respondent's sign exceeded 50% of the sign's depreciated physical value before the damage.
86-0575.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORATION. )
)
Petitioner, )
)
vs. ) CASE NO. 86-0575T
) (U.S. 1, 1/4 mile
E. T. LEGG AND COMPANY, ) N. Summerland Road,
) Monroe County)
Respondent. )
) DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
vs. ) CASE NO. 86-0966T
) (U.S. 1, 1/4 mile
T. LEGG AND COMPANY, ) N. Summerland Road
) Monroe, County)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on September 10, 1986, in Miami, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064
For Respondent: Charles C. Papy, III, Esquire
201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134
By letter dated January 14, 1986, the Petitioner advised Respondent that its sign permit number AK-332-1O could no longer be considered valid because the sign had been destroyed and the cost of replacing the sign would exceed fifty per cent (50 percent) of the depreciated value immediately prior to destruction. [DOAH Case No. 86-057st.] By notice dated February 14, 1986, the Petitioner advised Respondent that its sign located on U.S. 1 (State Road 5), approximately 1,029 feet north of Summerland Road, North Key Largo, was illegal and needed to be moved because it had no state sign permit and was erected in an area of unpermittable zoning. [DOAH Case No. 86-0966T] Because the two cases concern the same sign, they Were consolidated for purposes of the final hearing.
The parties submitted post hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
The outdoor advertising sign which is the subject of these proceedings is located on U.S. 1 (State Road 5) approximately 1,029 feet north of Summerland Road in North Key Largo.
The outdoor advertising sign is owned and maintained by the Respondent and is visible from the main traveled way of the adjacent roadway. The Respondent purchased the sign from the Daly Outdoor Advertising Company in 1984.
The sign consist percents of a ten feet by forty feet plywood sign face supported ]by five four inch by six inch poles which serve as uprights. In addition, the sign has 5 stringers (wooden planks placed in a cross-type fashion on the upright poles to hold the sign face in place).
The parties stipulated that the sign, in place prior to 1971, was a "nonconforming sign" as defined by Rule 14- 10.07, Florida Administrative Code. The sign permit number is AK-332-10.
In November of 1985, Hurricane Kate traveled through the Keys and damaged the sign.
On December 4, 1985, Mr. William Kenney, District VI Outdoor Advertising Administrator, passed the site of the sign and noticed that the face of the structure was blown over In the water. Because the sign was surrounded by water and mud, Mr. Kenney observed the sign from approximately 30 feet away.
Although the sign was blown over into the water, the face was intact. The poles which were used to hold the sign face snapped.
On December 10, 1985, the Respondent purchased 5 used telephone poles at a cost of $50.00 each and repaired the damaged sign. The poles were used as uprights to support the sign face.
On January 8, 1986, Mr. Kenney walked over to the sign and inspected it. In Mr. Kenney's opinion, the replaced upright poles appeared to be longer than the old ones, the stringers appeared to be made out of new wood and the plywood used on the face of the structure appeared to be new. The overall size of the repaired structure appeared to be the same size that it was before being damaged by the hurricane.
The sign is located at exactly the same location as it was prior to being blown down.
It is standard practice in the outdoor advertising industry for a company to exchange, refinish and replace faces of outdoor advertising signs on a routine basis.
By letter dated January 14, 1986, the Petitioner advised Respondent that its sign permit number AK-332-10 was no longer valid and by notice to show cause dated February 14, 1986, the Petitioner advised Respondent that the repaired sign had no valid permit and was illegal.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdic- tion over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Department of Transportation has the authority to regulate outdoor advertising signs and issue permits therefore, pursuant to the provisions of Chapter 479, Florida Statutes.
The Respondent's sign is a nonconforming sign. A non- conforming sign is a sign which was lawfully erected but does not comply with the provisions of state law or regulations passed at a later date or which fails to comply due to changed conditions. Rule 14-10.07, Florida Administrative Code, provides in part as follows:
The following shall apply to nonconforming signs:
A nonconforming sign must remain substantially the same as it was as of the date it became non- conforming. Reasonable repair and maintenance, including change of advertising message, is not a change which would terminate non- conforming rights.
* * *
(c) Nonconforming signs which are destroyed by an act of God may not be re-erected. Destroyed is defined as when the new materials costs to re-erect the sign exceed
50 percent of the physically depreciated value of the structural materials
in the sign, immediately prior to destruction.
The burden of proof in this case is on the Petitioner. An administrative agency, empowered to revoke a permit for reasons specified in a statute, may not revoke such permit for any cause not clearly within the ambit of its statutory authority because statutes authorizing- revocation must be strictly construed. Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984).
The Petitioner failed to establish that the new materials cost to the Respondent to re-erect the sign exceeded fifty per cent (50 percent) of the physically depreciated value of the structural materials in the sign immediately prior to destruction. There was absolutely no evidence as to the physically depreciated value of the structural materials in the sign immediately prior to the damage inflicted by Hurricane Kate. The new materials costs to the Respondent was $250.00. Thus, the Petitioner is required to show that the physically depreciated value of the structural materials in the sign immediately prior to its damage was less than $500.00. This, the Petitioner did not prove.
Therefore, because the Petitioner's determination of non-validity (DOAH Case No. 86-057st) was in error, the notice of violation alleging that the sign was erected in an area of unpermittable zoning and/or maintained without the required permit (DOAH Case No. 86-0966T) has not been proven.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore,
RECOMMENDED:
That a final order be issued declaring that sign permit AK-332-10 remains valid and dismissing the notice of violation and notice to show cause.
W. MATTHEW STEVENSON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1986.
APPENDIX TO THE RECOMMENDED ORDER
IN CASE NO. 86-0575T & 86-0966T (consolidated)
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to these cases.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Adopted in substance in Findings of Fact 1 and 5.
Addressed in Conclusions of Law section.
Adopted in Finding of Fact 2.
Rejected as subordinate.
Rejected as subordinate.
Partially adopted in Finding of Fact 3. Matters not contained therein are rejected as subordinate.
Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate.
Addressed in Conclusions of Law section.
Rejected as subordinate and/or not supported by competent substantial evidence.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 7.
Adopted in Finding of Fact 7.
Adopted in substance in Finding of Fact 4.
Adopted in substance in Finding of Fact 9. Matters not contained therein are rejected as subordinate.
Adopted in Finding of Fact 9.
Adopted in substance in Finding of Fact 9. Matters not contained therein are rejected as subordinate.
Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as argument and/or contrary to the weight of the evidence.
Rulings of Proposed Findings of Fact Submitted by the Respondent
Adopted in Finding of Fact 1.
Adopted in Findings of Fact 2 and 8.
Adopted in substance in Finding of Fact 7.
Adopted in substance in Finding of Fact 6.
Rejected as a recitation of testimony.
Adopted in substance in Findings of Fact 6 and 9.
Adopted in Finding of Fact 10.
Rejected as a recitation of testimony.
Adopted in substance in Finding of Fact 11.
Rejected as a recitation of testimony.
COPIES FURNISHED:
Charles G. Gardner, Esquire
-Department of Transportation
-Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064
Charles C. Papy, III, Esquire
201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134
Thomas Drawdy, Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
A. J. Spalla, General Counsel Department of Transportation
562 Haydon Burns Building Tallahassee, Florida 32301
Docket for Case No: 86-000575
Orders for Case No: 86-000575
| Issue Date |
Document |
Summary |
|
Dec. 23, 1986 |
Recommended Order
|
Petitioner DOT failed to establish that the cost of material to repair Respondent's sign exceeded 50% of the sign's depreciated physical value before the damage.
|
