STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0699T

) NORTH FLORIDA PECAN 1 & 2, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on February 2, 2000, in St. Augustine, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert M. Burdick, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: J. Stephen Alexander, Esquire

19 Old Mission Avenue

St. Augustine, Florida 32084 STATEMENT OF THE ISSUE

Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.

PRELIMINARY STATEMENT

This proceeding began on September 3, 1998, when Petitioner, Department of Transportation, issued a Notice of Violation - Maintenance of Nonconforming Signs in which it proposed to revoke Permit Number BR 252-55, which authorized Respondent, North Florida Pecan 1 & 2, Inc., to maintain an outdoor advertising sign 12.2 miles north of the Flagler County line on the west side of I-95 facing south. As a ground, Petitioner alleged that the "sign has been destroyed."

In a paper filed on October 1, 1998, Respondent requested a formal hearing to contest the agency's decision. The matter was forwarded by Petitioner to the Division of Administrative Hearings on February 16, 1999, with a request that an Administrative Law Judge be assigned to conduct a hearing. The case was later consolidated with Case Nos. 99-0698T and 99-0707T, which involved similar actions, but just prior to the final hearing, the Respondents in those cases later withdrew their requests for a hearing.

The three cases were first scheduled for final hearing on April 3, 1999, in St. Augustine, Florida. At the request of the parties, they were rescheduled to September 3, 1999, and then again to February 2, 2000, at the same location.

At the final hearing, Petitioner presented the testimony of Juanice Hagan, assistant director of outdoor advertising for the agency, and Keith Mousel, a forest area supervisor and accepted

as an expert in the cause and origin of wildfires. Also, it offered Petitioner's Exhibits 1-4. All exhibits were received in evidence. Respondent presented the testimony of David Shull, an employee of Radio Station WROF who maintains weather records for St. Johns County; Harley Head, one of its owners; and Thomas R. Simpson, an investigator. Also, it offered Respondent's Exhibits A-D, H, and I. All exhibits were received in evidence. Finally, the undersigned has taken official recognition of the 1986 and 1998 versions of Rule 14-10.007, Florida Administrative Code;

23 Code of Federal Regulations, Section 750.707; and Committee Substitute/House Bill 1535 signed into law on June 8, 1999.

The Transcript of the hearing was filed on February 24, 2000. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner on March 9, 2000, and they have been considered by the undersigned in the preparation of this Recommended Order. None were filed by Respondent.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this sign permit dispute, Petitioner, Department of Transportation (DOT), seeks to revoke the permit for an off- premise outdoor advertising sign owned by Respondent, North Florida Pecan 1 & 2, Inc. (Respondent), on the grounds that the original sign was destroyed by a fire in June 1998, the newly rebuilt sign has lost its nonconforming status, and any rebuilt

   sign is now illegal. In response to these charges, Respondent contends that the fire that destroyed the sign was an act of criminal mischief or arson, rather than an Act of God, and thus the sign still qualifies for a nonconforming status.

2. The sign in question is located 12.2 miles north of the Flagler County line on the west side of Interstate 95 (I-95) facing south, and is perhaps a mile or so south of the intersection of State Road 207 and I-95 (intersection) in

   St. Johns County, Florida. Respondent does not own the property where the sign is located, and it conducts no other business activities on that property. The property on which the sign is located is zoned Open Rural by St. Johns County (County), and it is not designated predominately for commercial or industrial uses by the County under the County's future land use map, comprehensive plan, or zoning ordinances.

3. The sign is used to advertise Respondent's combination gas station and "open-area fruit market" located "just off" the intersection. The parties have stipulated that the sign was originally constructed more than 20 years ago before the current sign regulations became effective; under the present law, it would be a nonconforming sign and illegal.

4. On May 27, 1998, a thunderstorm occurred in St. Johns County, resulting in between one-quarter and one-half inch of rainfall in the area. Due to a lightning strike on a tree, a 2-acre fire started approximately 1,000 feet southwest of the

   intersection in the vicinity of the sign. Although firefighters believed they had "knocked out" the fire within a day or two, the fire continued to smoulder under the dampened top layer of organic matter for several weeks until June 15, 1998, when it "worked its way back to the surface," broke out again, and cleared the containment line of the earlier fire.

5. Aided by a light wind from the southeast and extremely dry conditions, the fire quickly spread eastward at the rate of 1,000 to 1,500 feet every 15 minutes and consumed several hundred acres, including the land on which Respondent's sign was located, before it was brought under control. That fire is commonly referred to as the Fort Peyton fire.

6. In determining the cause of the Fort Peyton fire, forestry officials could not find any indicators of arson, and visual burn patterns clearly indicated that the new fire's origin was where the May 27 fire had begun. Therefore, it was officially classified as a "rekindle or breakout" of the May 27 fire, which was started by lightning. Put another way, the fire was the result of an Act of God, which is "the sudden manifestation and forces of nature."

7. On either May 30 or June 5, 1998, depending on whether court or forestry records are accepted as being the most accurate, a fire began in Flagler Estates, which, "as the crow flies," lies approximately 12 to 15 miles southeast of the Fort Peyton fire. The Flagler Estates fire, however, was the result

   of an unattended illegal burn which was started by three individuals and went out of control. The fire was brought under control the same evening by firefighters, but only after some 450 surrounding acres were destroyed. The three individuals were later charged with arson.

8. Respondent established that the prevailing winds during May and June 1998 were from the southeast and that "spoilers" or "floaters" (hot debris) from existing fires can sometimes float in the air and ignite new fires several miles away. Indeed, Respondent's investigator observed spoilers from inland fires floating through the air some 8 or 9 miles out in the Atlantic Ocean while he was fishing during that period of time. Accordingly, Respondent contends that it is just as likely that a spoiler floated northeastward from the Flagler Estates fire on May 30, 1998, and ignited the Fort Peyton blaze, some 12 to 15 miles away. If this theory is accepted, it would mean that the Fort Peyton fire would be attributable to arson, and not to an Act of God.

9. The foregoing assumption has been rejected for several reasons. First, spoilers from the Flagler Estates fire did in fact ignite several spot fires in the area, but all of these spot fires occurred on the same day as the fire started and were within an eighth of an mile from the Flagler Estates perimeter. Second, it is highly unlikely that a spoiler would float up to

   15 miles and then lie dormant for two weeks before igniting the

   Fort Peyton fire. Finally, the theory goes counter to the more persuasive evidence given by the supervising forester who investigated the Fort Peyton fire and concluded that it was an outbreak of the earlier fire that was started on May 27, 1998.

10. After the sign was destroyed, Respondent rebuilt the sign at the same location using substantially the same materials that had composed the sign before it burned. However, the materials used to rebuild the sign were not part of the sign structure which was burned in the Fort Peyton fire. The new sign is the same size, shape, and height of the destroyed sign.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

12. As the party seeking to revoke Respondent's permit, Petitioner bears the burden of proving by a preponderance of the evidence that the allegations in the charging document are correct. Fla. Dep't of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Those allegations include the charge that "[t]he sign has been destroyed" through an Act of God, that is, a fire caused by lightning striking a tree.

13. Because Respondent's sign was erected before the current spacing requirements were enacted, the sign "must remain substantially the same way it was as of the date it became

    nonconforming." Rule 14-10.007(1)(a), Florida Administrative Code. A nonconforming sign which is subsequently "destroyed" may not be reerected unless the sign "is destroyed by vandalism or other criminal or tortious act"; in that event, it can be "reerected in kind." Rule 14-10.007(1)(f), Florida Administrative Code. Respondent contends that its newly rebuilt sign qualifies under this exception.

14. The first issue is whether Respondent's sign was destroyed by vandalism or other criminal or tortious act so that the sign can be "reerected in kind." For the reasons given in the Findings of Fact, the more credible and persuasive evidence supports a conclusion that Respondent's sign was destroyed by an Act of God, and not because of vandalism or other criminal or tortious act. Therefore, as a destroyed nonconforming sign, it cannot be reconstructed.

15. In its request for a hearing, Respondent also contended that it is entitled to keep its permit (and sign) under

    Section 24 of CS/HB 1535 (Chapter 99-292, Laws of Florida)(not codified in Florida Statutes), which permits "nonconforming appurtenances to real property which were damaged or destroyed during the wildfires that occurred during June and July of 1998" to be rebuilt "unless prohibited by Federal law or regulation." This provision, however, does not apply for two reasons. First, under state law, outdoor advertising signs are considered personal property and not realty. Hernando County v. Anderson,

    737 So. 2d 569 (Fla. 5th DCA 1999). Because Respondent does not own the real property where the sign is located, and it conducts no other business activities on that land, the sign does not fall within the purview of the term "appurtenances to real property." Second, 23 Code of Federal Regulations, Section 750.707(6) prohibits the reconstruction of nonconforming signs after being destroyed unless such destruction was due to vandalism or other criminal or tortious acts. See Dep't of Trans. v. Whiteco Metrocom, Case Nos. 99-0906T, 99-0907T, 99-0908T, 99-0909T, 99-

    0910T, and 99-0911T (Dep't of Trans., Nov. 23, 1999); Dep't of Trans. v. Lamar East Florida, Case Nos. 99-0486T, 99-0487T, 99- 0947T, and 99-0950T (Dep't of Trans., Jan. 19, 2000). For these reasons, then, the provisions of the cited law do not apply, and thus they do not authorize the sign to be reconstructed.

16. Because the nonconforming sign has been destroyed by an Act of God, and may not be reconstructed, the challenged permit should be revoked and the offending sign removed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by North Florida Pecan 1 & 2, Inc., under sign permit number BR 252-55 is illegal and must be removed. The permit should also be revoked.

DONE AND ENTERED this 17th day of March, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 day 17th of March, 2000.

COPIES FURNISHED:

Thomas F. Barry, Secretary Department of Transportation

ATTN: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

J. Stephen Alexander, Esquire

19 Old Mission Avenue

St. Augustine, Florida 32084 Robert M. Burdick, Esquire

Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Pamela S. Leslie, General Counsel Department of Transportation

605 Suwannee Street

Mail Station 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.

Docket for Case No: 99-000707

Orders for Case No: 99-000707