STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION, DOAH CASE NOS.: 99-0659T

99-0660T

Petitioner, 99-0661T

99-0889T

vs. 99-0902T

DOT CASE NOS.: 99-0009

UNIVERSAL OUTDOOR ATLANTIC COAST, 99-0010

99-0011

Respondent. 99-0034

/ 99-0035

FINAL ORDER

This proceeding was initiated by Requests for Formal Administrative Hearing filed by Respondent, UNIVERSAL OUTDOOR ATLANTIC COAST (hereinafter UNIVERSAL), on January 14, 1999. The requests for an administrative hearing were filed in response to Notices of Violation issued by Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), on January 7, 1999, for UNIVERSAL'S sign structures located adjacent to US 1 and Interstate 95, in Volusia County, Florida. The Notices were issued because UNIVERSAL unlawfully reerected its nonconforming outdoor advertising signs which were destroyed by fire.

The matter was referred to the Division of Administrative Hearings (hereinafter "DOAH"), and DOAH issued its Initial Orders assigning the cases to Suzanne F. Hood, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. On March 4, 1999, the Administrative Law Judge issued an order consolidating the cases.

The hearing was conducted in Daytona Beach, Florida, on August 19, 1999, before Suzanne F. Hood, Administrative Law Judge. Appearances on behalf of the parties were as follows:

For Petitioner: Robert M. Burdick, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

For Respondent: Aileen M. Reilly, Esquire

Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151

At the hearing, UNIVERSAL introduced and had accepted into evidence UNIVERSAL'S Exhibit 1, and presented the testimony of one witness. The Administrative Law Judge reserved ruling on the admissibility of UNIVERSAL'S Exhibit 2, which was later accepted in the Administrative Law Judge's Recommended Order. The DEPARTMENT introduced the DEPARTMENT'S Exhibits 1 through 4; Exhibits 1 through 3 were admitted into evidence and Exhibit 4 was denied as irrelevant and inadmissible hearsay. The DEPARTMENT also introduced the trial testimony and portions of the deposition testimony of Michael Kuypers presented in cases consolidated under DOAH Case No. 99-0486T, as the DEPARTMENT'S Exhibit 5. The testimony of two additional witnesses was presented by the DEPARTMENT. A transcript was prepared and filed subsequent to the hearing. On October 27, 1999, the Administrative Law Judge issued her Recommended Order.

Exceptions to the Recommended Order were filed by UNIVERSAL on

November 10, 1999, and the DEPARTMENT filed its response to UNIVERSAL'S exceptions on November 18, 1999. The DEPARTMENT filed exceptions to the Recommended Order on November 4, 1999, and UNIVERSAL filed its response to the DEPARTMENT'S exceptions on November 15, 1999.

STATEMENT OF THE ISSUE

As stated by the Administrative Law Judge in her Recommended Order, the issue presented is: "should certain outdoor advertising signs owned by Respondent, Universal Outdoor Atlantic Coast (Universal) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Universal?"

BACKGROUND

The DEPARTMENT issued Notices of Violation No. 09 BU859,09 BU860, and 09 BU858 on January 7, 1999, and Notices of Violation No. 09 BU856 and 09 BU855 on January 19, 1999, because UNIVERSAL had reerected its nonconforming outdoor advertising signs which were destroyed by fire.

UNIVERSAL contested the DEPARTMENT'S Notices, asserting that the sign structures did not lose their nonconforming status, the sign structures had been maintained in accordance with the requirements of Florida Statutes and the Florida Administrative Code, and the sign structures had not been destroyed by an Act of God as that term is defined in Florida Statutes and Florida Administrative Code. Further, UNIVERSAL contends that had

UNIVERSAL been allowed to protect its property, the damage sustained by its sign structures as a result of the fires would not have occurred.

UNIVERSAL'S EXCEPTIONS TO RECOMMENDED ORDER

UNIVERSAL'S first exception is that the Administrative Law Judge improperly failed to Page 3 of 27 consider all of UNIVERSAL'S arguments concerning the destruction of the signs at issue in these proceedings.

UNIVERSAL first argues that the Administrative Law Judge failed to rule on UNIVERSAL'S claim that the Division of Forestry had a statutory duty to protect UNIVERSAL'S property from the wildfire, and that the Division breached that duty. UNIVERSAL then argues that the Administrative Law Judge failed to make findings of fact that UNIVERSAL believes support its claim that such a duty existed, and was breached.

In its Proposed Recommended Order, UNIVERSAL extensively argued its theory that the Division of Forestry breached a statutorily imposed obligation to protect UNIVERSAL'S signs. Judge Hood acknowledged UNIVERSAL'S Proposed Recommended Order in her Recommended Order. Having heard all of the evidence and the theories advanced by both the DEPARTMENT and UNIVERSAL, Judge Hood concluded that UNIVERSAL failed to prove that the signs were destroyed "by an act of vandalism or other criminal act or by commission of a tort." UNIVERSAL'S argument that Conclusion of Law Number 28 does not encompass UNIVERSAL'S theory that the Division of Forestry tortiously failed to protect its signs is without merit in law or fact.

By its exception, UNIVERSAL claims that the Administrative Law Judge must have erred because she did not conclude that the Division of Forestry had a statutory duty to protect UNIVERSAL'S signs from damage by wildfire. However, the record herein and the law establish the propriety of the Administrative Law Judge's findings and conclusions. The Florida Supreme Court has specifically stated that a governmental entity does not owe individual property owners a common law duty of care to provide fire protection services, and the Florida legislature has declined to impose such a duty by statute. City of Daytona Beach v. Palmer, 469 So. 2d 121 (Fla. 1985); § 590.02(3), Fla. Stat.

There is no basis in law or fact to support UNIVERSAL'S argument that the Division tortiously failed to protect its signs.

UNIVERSAL also argues that the Administrative Law Judge improperly failed to consider whether the destruction of the signs was the result of an Act of God. Prior to the hearing, the parties stipulated that, on July 1 or 2, 1998, each of the

subject signs was destroyed by wildfire under the definition of "destroyed" set out in Rule 14-10.007(1)(d), Florida Administrative Code. That rule language was adopted by the DEPARTMENT effective June 28, 1998. The previous version of the rule incorporated language that suggested that the force of destruction must be an Act of God. See, former Rule 14- 10.007(c), Florida Administrative Code, adopted March 28, 1977, amended December 10, 1977, and January 1, 1986. Under Rule 14- 10.007(1)(e), Florida Administrative Code, as amended effective June 28, 1998, the Act of God analysis is only relevant in determining whether signs damaged before June 28, 1998, were "destroyed." The Administrative Law Judge specifically found that the signs in question were destroyed on July 1, 1998.

Consequently, the Act of God analysis is irrelevant to this

proceeding.

UNIVERSAL continues, arguing that Judge Hood's decision to not make certain findings requested by UNIVERSAL means that her conclusions of law are not based upon competent substantial evidence. As acknowledged by UNIVERSAL, the issue in this proceeding is whether the signs were destroyed by vandalism, or other criminal or tortious act. Judge Hood specifically ruled on this issue, and her ruling is supported by competent substantial evidence. No competent substantial evidence was offered that would support UNIVERSAL'S theory that some person had a duty to engage in prescribed burning or that the Division of Forestry had a duty to protect UNIVERSAL'S signs. The record does support the Administrative Law Judge's findings and conclusions about the backfires. The DEPARTMENT is without authority to reinterpret evidence or substitute its judgment on the evidence. Heifetz v. Dep't of Business Reg., 475 So. 2d 1277 (Fla. 1st DCA 1985).

The additional findings requested by UNIVERSAL are identical to findings requested in its Proposed Recommended Order, and the theories to which these additional findings purportedly relate were argued by UNIVERSAL, were considered by Judge Hood, and were rejected. Because the facts proposed by UNIVERSAL were considered by the Administrative Law Judge and material issues were decided and are supported by competent substantial evidence, remand for further consideration of these facts and theories is not required. Intelligence Group Inc. v. Dep't of State, 610 So. 2d 589 (Fla. 2d DCA 1992).

Finally, UNIVERSAL criticizes Judge Hood for crafting a Recommended Order "almost identical to the Recommended Order [issued by Judge Adams] in the cases consolidated under DOAH Case Number 99-0486T," instead of considering the evidence and reaching her own findings and conclusions. UNIVERSAL correctly notes similarities between the two orders. However, the unavoidable fact is that the issues, the witnesses, the

testimony, and the evidence in each case are virtually identical. All of the cases involve the destruction of signs in the same geographic area, by the same wildfire. Additionally, much of the testimony concerning the origin and spread of the fire was entered in this proceeding by admission of the transcript of the testimony of Mike Kuypers from the case before Judge Adams. The only witness called by UNIVERSAL at either hearing was Dennis Dewar. UNIVERSAL'S criticisms are baseless and not supported by the record.

UNIVERSAL'S first exception is rejected.

UNIVERSAL'S second exception is to Finding of Fact No. 16 that the Administrative Law Judge omitted relevant and material evidence by failing to address the competent substantial evidence that demonstrated that firefighting efforts employed by the firefighters to save property, such as homes and businesses, were not used on UNIVERSAL'S signs, and that, had such tactics been employed, the signs, like the homes and businesses, could have been saved.

Judge Hood considered all of the evidence and the arguments advanced by the parties, and could not conclude that the firefighters were required to protect UNIVERSAL'S signs from damage. UNIVERSAL'S requested findings are without basis in the record or the law. Judge Hood considered the evidence and made findings of fact on the material issues. This is not a case where an Administrative Law Judge has failed to make factual findings on the evidence presented. See Intelligence Group.

Inc., 610 So. 2d 589 (hearing officer failed to address charges of misconduct because he had determined the appellant was immune from disciplinary action). The findings sought by UNIVERSAL were not made because they are not supported by competent substantial evidence in the record and are not supported in the law.

UNIVERSAL'S second exception is rejected.

UNIVERSAL'S third exception is to the Administrative Law Judge's Finding of Fact No. 17 that Georgia Pacific lit a backfire on "June 28, 1999." UNIVERSAL argues that the wildfires at issue occurred in June and July, 1998, not June 28, 1999.

There is no reference to any date whatsoever in Finding of Fact No. 17. The date to which UNIVERSAL refers is found in Finding of Fact No. 18 of the Recommended Order. It would appear that it is UNIVERSAL that is using "canned" exceptions to recommended orders, as such a typographical error appears in paragraph 17 of Judge Adams' Recommended Order. Nevertheless, the evidence at the hearing is undisputed that a backfire was lit

on June 28, 1998. No evidence was presented concerning any fires during 1999.

UNIVERSAL'S third exception is accepted.

UNIVERSAL'S fourth exception is to the Administrative Law Judge's Findings of Fact No. 19 and 20 wherein it was concluded that the backfire lit by the Timber Company was "inconsequential" (Finding of Fact No. 19) and that the backfire lit by the California crew did not have "meaningful significance" in moving the wildfire forward (Finding of Fact No. 20).

UNIVERSAL argues that Findings of Fact No. 19 and 20 are contrary to Finding of Fact No. 17 and the Administrative Law Judge's finding that during the time the Rodeo Road Fire took place, the use of backfires was not especially successful due to the dryness of the fuels. UNIVERSAL further argues that the statement that the backfire did not have meaningful significance is not consistent with the actual spread of the wildfire.

According to UNIVERSAL, the facts that backfires were lit by human hands and that they did not contain the spread of the wildfire support its proposition that the spread of the wildfire was not the result of the forces of nature alone, but involved human intervention. Since human intervention played a role, UNIVERSAL argues, the spread of the wildfires was not the result of an Act of God. If the spread of the wildfire was not the result of an Act of God, the spread of the wildfire, and the destruction to its signs, must be attributed something else.

That "something else" was, according to UNIVERSAL, the result of tortious conduct. UNIVERSAL contends that backfires lit by the Division of Forestry were unsuccessful and, as such, the Division of Forestry failed to adequately perform its duties, and was negligent. UNIVERSAL argues this alleged negligence entitles it to reerect its signs pursuant to Rule 14-10.007(1)(f), Florida Administrative Code.

A review of the record in its entirety establishes that the findings expressed in Findings of Fact No. 19 and 20 are supported by competent substantial evidence and are not in conflict with other findings. It is the Administrative Law Judge's role to consider all the evidence, resolve conflicts, judge the credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact. Heifetz,

475 So. 2d at 591. The DEPARTMENT is without authority to disturb such findings.

UNIVERSAL'S fourth exception is rejected.

UNIVERSAL'S fifth exception is to the Administrative Law Judge's Conclusion of Law No. 25 wherein she concluded that the signs bearing permit numbers BU858-55, BU856-55, and BU855-55 became nonconforming. UNIVERSAL argues that the only evidence in support of the nonconformity was hearsay within hearsay, and is therefore not sufficient in itself to support a finding of fact or conclusion of law.

Initially, it is noted that UNIVERSAL made no objection to the testimony establishing the signs' nonconformity at the hearing. Failure to make a contemporaneous objection constitutes waiver. W.R. Grace & Cc.-Conn. v. Dougherty 636 So. 2d 746 (Fla. 2d DCA 1994).

Although the nonconformity of the subject signs was established on the record, the burden of establishing their nonconformity was altered by the parties' stipulations prior to hearings provided in the parties' Prehearing Stipulation (page 7), the only factual issue to be determined by the Administrative Law Judge was:

The cause of the destruction of the signs and whether any exceptions set forth in Rule 14- 00.007(1)(f), Florida Administrative Code, allowing for the reerection of the billboards, are applicable.

The DEPARTMENT and UNIVERSAL also stipulated that the signs were all destroyed under the definition of destruction set out in Rule 14-10.007(1)(d), Florida Administrative Code. This definition applies only to nonconforming signs. Notwithstanding the DEPARTMENT'S unobjected to testimony, there was no factual issue concerning the nonconforming status of the signs preserved for hearing. When parties in good faith stipulate to particular facts, their stipulations should be enforced. Esch v. Forster,

123 Fla. 905, 168 So. 229 (1936); Cunningham v. Standard Guaranty Ins. Co., 630 So. 2d 179 (Fla. 1994). UNIVERSAL'S after-the-fact reinterpretation of its pleadings and the meaning of its stipulations cannot alter the result or the evidence.

Notwithstanding their other stipulations, in that portion of the parties' Prehearing Stipulation entitled "ISSUES OF LAW ON WHICH THERE IS AGREEMENT," at paragraph 3, the parties agree: "If the billboards are found to be conforming, the billboards may be reerected." Thus, even if it could be argued that the parties' stipulations did not preclude UNIVERSAL from ultimately establishing that signs were conforming, UNIVERSAL presented no evidence to even suggest that the signs were conforming. In addition, UNIVERSAL made no objection to the identification of the issue upon referral to DOAH or to the Administrative Law

Judge's identification of the issue in her Recommended Order. UNIVERSAL cannot after the fact raise for the first time that the signs are conforming, contending the evidence presented by the DEPARTMENT is insufficient and incompetent to establish the nonconformity of the signs. Esch, 123 Fla. 905, 168 So. 229; Harley v. Lopez, 24 Fla. L. Weekly D878 (Fla. 3d DCA April 17, 1999). By UNIVERSAL'S stipulation, what could be established was the signet conformity. What UNIVERSAL did not establish was the signet conformity.

The DEPARTMENT offered evidence through its witness, John Garner, explaining the nature of the signs' nonconformity as a result of their noncompliance with the provisions of state law regulating the spacing of signs or limiting signs to areas designated predominately for commercial or industrial use.

Although this evidence explains the nature of the nonconforming status, it does not change the fact that the nonconforming status was not at issue. Only on cross examination and only as to a single response from Mr. Garner regarding Volusia County's confirmation of the land use designations of the subject properties did UNIVERSAL even raise an objection. UNIVERSAL'S failure to make a contemporaneous objection constitutes waiver.

Clark v. State, 363 So. 2d 331 (Fla. 1978). The one and only objection and motion to strike made by UNIVERSAL was directed to one specific response and not to Mr. Garner's entire testimony. The objection and motion were overruled.

UNIVERSAL is not entitled to enter into stipulations, fail to make timely proper objections, elicit additional testimony on cross examination supporting the DEPARTMENT'S position, and then argue after the fact that the record and the evidence are insufficient. Florida courts have long abhorred such "gotcha" tactics. Harley v. Lopez, 24 Fla. L. Weekly D878; Berkman v.

Foley, 709 So. 2d 628 (Fla. 4th DCA 1998). UNIVERSAL argues irl response to the DEPARTMENT'S exceptions that notwithstanding its failure to object, findings based only upon hearsay cannot stand. UNIVERSAL cannot prevail in this regard because had an appropriate and timely objection been made, appropriate nonhearsay evidence or other rebuttal to the objection could have been presented and the DEPARTMENT'S position and the record could have been fully developed in this regard. UNIVERSAL cannot take advantage of its own failures and claim them as error to refute and overrule the Administrative Law Judge's findings and conclusions.

UNIVERSAL'S fifth exception is rejected.

UNIVERSAL'S sixth exception is to the Administrative Law Judge's Conclusion of Law No. 27 that the exceptions made for the repair of nonconforming signs destroyed by vandalism, criminal,

or tortious acts are the only exceptions allowed by 23 C.F.R. Section 750.707(6).

UNIVERSAL argues that 23 C.F.R. Section 750.707(6) expressly authorizes states to make exceptions for the reerection of destroyed nonconforming signs and that, according to Rule 14- 10.007(1)(d) and (f), Florida Administrative Code, the ability to reerect a nonconforming sign destroyed as a result of tortious conduct is one such exception to the rule that nonconforming signs that are destroyed cannot be reerected. According to UNIVERSAL, in passing House Bill 1535, the State of Florida determined that nonconforming businesses (i.e., signs) damaged as a result of the wildfires of June and July, 1998, would be treated differently than nonconforming businesses (signs) destroyed by other means or events, and that Rule 14- 10.007(1)(d), Florida Administrative Code, would not be applicable to those signs.

UNIVERSAL incorrectly construes 23 C.F.R. Section 750.707(6) as authorizing reconstruction of the subject signs. As established by the competent substantial evidence in this record, the signs were not destroyed as a result of tortious conduct, vandalism, or other criminal acts, the exceptions allowed under

23 C.F.R. Section 750.707(6). As such, 23 C.F.R. Section 750.707(6) does not provide for reconstruction of the subject signs. In addition, UNIVERSAL offered no evidence of any statutory interpretation or that the plain meaning of the words chosen by the legislature should not be given to the provisions of House Bill 1535. Had the legislature intended to establish an exemption from Rule 14-10.007(1)(d), Florida Administrative Code, it would have said so. The Administrative Law Judge's conclusions and findings in this regard are supported by the record.

UNIVERSAL'S sixth exception is rejected.

UNIVERSAL'S seventh exception is to Conclusion of Law No.

28 that the Administrative Law Judge erred in finding that the DEPARTMENT proved the nonconforming nature of the signs carrying permit numbers BU 358-55, BU856-55, and BU855-55, and finding that UNIVERSAL failed to prove that the signs were destroyed as a result of vandalism, or other criminal or tortious act. Once again, UNIVERSAL argues that the Administrative Law Judge failed to consider and address evidence related to certain acts which would amount to tortious conduct, and thereby allow for reerection of the signs pursuant to Rule 14-10.007(1)(f), Florida Administrative Code. UNIVERSAL also argues that the Administrative Law Judge erred in Conclusion of Law No. 28 by limiting UNIVERSAL'S theories of tortious conduct to the failure of property owners to conduct prescribed burns and the setting of

backfires. The Administrative Law Judge, UNIVERSAL continues, ignored other acts which amount to tortious conduct and that are supported by competent substantial evidence.

UNIVERSAL'S contentions that the Administrative Law Judge failed to conclude that the Division of Forestry had a statutory duty to protect UNIVERSAL'S property from the wildfire, and that the Division breached that duty, are without any basis in fact or in the law.

In its Proposed Recommended Order UNIVERSAL extensively argued its theory that the Division of Forestry breached a statutorily imposed obligation to protect UNIVERSAL'S signs. Judge Hood acknowledged the filing of UNIVERSAL'S Proposed Recommended Order in her Recommended Order. Having heard the witnesses' testimony, reviewed the evidence, and judged the credibility of the witnesses, Judge Hood made specific findings and concluded that UNIVERSAL failed to prove that the signs were destroyed "by an act of vandalism or other criminal act or by commission of a tort." UNIVERSAL'S argument that Conclusion of Law Number 28 does not encompass UNIVERSAL'S theory that the Division of Forestry tortiously failed to protect its signs is without basis in fact or law. UNIVERSAL simply disputes the Administrative Law Judge's failure to conclude that the Division of Forestry had a statutory duty to protect UNIVERSAL'S signs from damage by wildfire. The lack of such a conclusion is neither inadvertent nor erroneous. The Florida Supreme Court has specifically held that a governmental entity does not owe individual property owners a common law duty of care to provide fire protection services, and the Florida legislature has declined to impose such a duty by statute. City of Daytona Beach v. Palmer, 469 So. 2d 121 (Fla. 1985); § 590.02(3), Fla. Stat.

UNIVERSAL'S argument that the Division of Forestry tortiously

failed to protect its signs is meritless and without basis in law or fact.

UNIVERSAL also takes issue with the Administrative Law Judge's conclusion that the DEPARTMENT established the subject signs are nonconforming.

As noted above, as a result of the parties' stipulation, UNIVERSAL'S failure to make contemporaneous objections, and UNIVERSAL'S failure to establish the sign's conformity,

UNIVERSAL'S exception is not well founded.

Although the nonconformity of the subject signs was established on the record, the burden of establishing their nonconformity was altered by the parties' stipulations prior to hearing. As provided in the parties' Prehearing Stipulation

(page 7), the only factual issue to be determined by the Administrative Law Judge was:

The cause of the destruction of the signs and whether any exceptions set forth in Rule 14- 10.007(1)(f), Florida Administrative Code, allowing for the reerection of the billboards, are applicable.

The DEPARTMENT and UNIVERSAL also stipulated that the signs were all destroyed under the definition of destruction set out in Rule 14-10.007(1)(d), Florida Administrative Code. This definition applies only to nonconforming signs. Notwithstanding the DEPARTMENT'S unobjected to testimony, there was no factual issue concerning the nonconforming status of the signs preserved for hearing. When parties in good faith stipulate to particular facts their stipulations should be enforced. Esch v. Forster,

123 Fla. 905, 168 So. 229 (1936); Cunningham v. Standard Guaranty Ins. Co., 630 So. 2d 179 (Fla. 1994). UNIVERSAL also acknowledged that these signs are classified as nonconforming billboards in its Motion to Amend Pleadings filed in each of the consolidated cases. UNIVERSAL'S after-the-fact reinterpretation of its pleadings and the meaning of its stipulations cannot alter the result or the evidence.

Notwithstanding their stipulations to the contrary, in that portion of the parties' Prehearing Stipulation entitled "ISSUES OF LAW ON WHICH THERE IS AGREEMENT," at paragraph 3, the parties agreed: "If the billboards are found to be conforming, the billboards may be reerected." Thus, even if it could be argued that the parties' stipulations did not preclude UNIVERSAL from obtaining a finding that the signs were conforming, UNIVERSAL presented not a scintilla of evidence that would lead to a conclusion that the signs were conforming. In addition, UNIVERSAL made no objection to the identification of the issue upon referral to DOAH or to the Administrative Law Judge's identification of the issue in her Recommended Order. UNIVERSAL cannot after the fact raise for the first time that the signs are conforming because the evidence presented by the DEPARTMENT is insufficient and incompetent to establish the nonconformity of the signs. Esch, 123 Fla. 905, 168 So. 229; Harley v. Lopez, 24 Fla. L. Weekly D878 (Fla. 3d DCA April 17, 1999). By the parties' stipulation, if the signs were found to be conforming, they could be reerected. UNIVERSAL did not meet its burden of establishing the signs' conformity.

The evidence offered by the DEPARTMENT through its witness, John Garner, explains the nature of the signs' nonconformity as a result of their noncompliance with the provisions of state law regulating the spacing of signs or limiting signs to areas

designated predominantly for commercial or industrial use. Although this evidence explains the nature of the signs' nonconforming status, it does not change the fact that the nonconforming status was not at issue. During cross examination of Mr. Garner, UNIVERSAL, for the first time, objected to something he said. When Mr. Garner testified that the land use designations were confirmed through someone in Volusia County, UNIVERSAL objected to and moved to strike the response as "hearsay within hearsay." The objection and motion were overruled. UNIVERSAL'S failure to make a contemporaneous objection to any of Mr. Garner's other responses constitutes waiver. Clark v. State, 363 So. 2d 331 (Fla. 1978).

UNIVERSAL is not entitled to enter into stipulations, fail to make timely proper objections, elicit additional testimony on cross examination supporting the DEPARTMENT'S position, and then argue after the fact that the record and the evidence are insufficient. Florida courts have long abhorred such "gotcha" tactics. Harley v. Lopez, 24 Fla. L. Weekly D878; Berkman v.

Foley, 709 So. 2d 628 (Fla. 4th DCA 1998). UNIVERSAL argues in response to the DEPARTMENT'S exceptions that notwithstanding its failure to object, findings based only upon hearsay cannot stand. UNIVERSAL cannot prevail in this regard because had an appropriate and timely objection been made, appropriate nonhearsay evidence or other rebuttal to the objection could have been offered and the DEPARTMENT'S position and the record could have been fully developed in this regard. UNIVERSAL cannot take advantage of its own failures and claim them as error to refute and overrule the Administrative Law Judge's findings and conclusions.

UNIVERSAL'S seventh exception is rejected.

UNIVERSAL'S eighth exception is to the Administrative Law Judge's Conclusion of Law No. 29 finding that 23 C.F.R. Section 750.707(6) prohibits the reerection of the subject signs.

UNIVERSAL argues that 23 C.F.R. Section 750.707(6) expressly authorizes states to make exceptions for the reerection of destroyed nonconforming signs and that, according to Rule 14- 10.007(1)(d) and (f), Administrative Code, the ability to reerect a nonconforming sign destroyed as a result of tortious conduct is one such exception to the rule that nonconforming signs that are destroyed cannot be reerected. According to UNIVERSAL, in passing House Bill 1535, the State of Florida determined that nonconforming businesses (i.e., signs) damaged as a result of the wildfires of June-and July, 1998, would be treated differently than nonconforming businesses (signs) destroyed by other means or events, and that Rule 14-10.007(1)(d), Florida Administrative Code, would not be applicable to those signs.

UNIVERSAL incorrectly construes 23 C.F.R. Section 750.707(6) as authorizing reconstruction of the subject signs. As established by the competent substantial evidence in this record, the signs were not destroyed as a result of tortious conduct, vandalism, or other criminal acts, the exceptions allowed under 23 C.F.R. Section 750.707(6). As such, 23 C.F.R. Section 750.707(6) does not provide for reconstruction of the subject signs. Moreover, UNIVERSAL offered no legislative

history or other evidence to support its position or to support a conclusion that the plain meaning of the words chosen by the legislature should not be given to the provisions of House Bill 1535. The Administrative Law Judge properly concluded House Bill 1535 does not authorize the reerection of the subject signs.

UNIVERSAL'S eighth exception is rejected.

UNIVERSAL'S ninth exception is to Conclusion of Law No. 30 wherein the Administrative Law Judge found that the permits for UNIVERSAL'S signs carrying permit numbers BU858-55, BU856-55, and BU855-55 should be revoked and that the signs should be removed. UNIVERSAL argues that because it made a prima facie showing of tortious conduct by the Division of Forestry, Rule 14-10.007, Florida Administrative Code, does not prohibit the reerection of the signs.

The Administrative Law Judge properly concluded that UNIVERSAL failed to prove that the signs were destroyed "by an act of vandalism or other criminal act or by commission of a tort." None of the exceptions provided in Rule 14-10.007(1)(f), Florida Administrative Code, apply to the signs that are the subject of this consolidated proceeding, 23 C.F.R. Section 750.707(6) prohibits reerection of the signs, and the provisions of House Bill 1535 do not authorize the reerection of the signs.

UNIVERSAL'S ninth exception is rejected.

DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER

The DEPARTMENT'S first exception is to the Administrative Law Judge's Finding of Fact No. 4 that there was no competent evidence as to Volusia County's designated land use for the area where the subject signs are located.

The competency and admissibility of evidence are preliminary matters determined by the court, and are not facts to be determined by the trier of fact. § 90.105, Fla. Stat. This function contrasts with the fact finder's role in weighing the evidence, judging the credibility of witnesses, and making ultimate findings of fact based upon competent substantial

evidence. Here,, the Administrative Law Judge neither stated nor concluded that she was not persuaded by the offered evidence, which would be a finding of fact. Goin v. Comm'n on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995). Rather, the Administrative Law Judge concluded that the DEPARTMENT'S evidence was not competent. This conclusion conflicts with the Administrative Law Judge's overruling of UNIVERSAL'S objection and motion to strike Mr.

Garner's testimony regarding information verified by Volusia County regarding land use designation.

Even if the Administrative Law Judge's conclusion in this regard is a finding of fact which the DEPARTMENT can disturb only under limited circumstances, the finding cannot stand because it is contrary to the parties' agreements regarding the burden of proof in this case. As detailed above, the parties agreed that if it could be "found" that the billboards were "conforming," they may be reerected. The only way the signs could be "found" to be "conforming" is for evidence to have been introduced at the hearing establishing their conformity. There is no such evidence in this record. Thus, whether a conclusion of law or finding of fact, the statement that "no competent evidence as to Volusia County's designated land use for the area in which the sign is located" is contrary to the competent substantial evidence, contrary to the parties' stipulations, and contrary to the law that binds parties to their stipulations. Cunningham, 630 So. 2d 179.

The DEPARTMENT'S first exception is accepted.

The DEPARTMENT'S second exception is to the Administrative Law Judge's Conclusion of Law No. 28 that the DEPARTMENT had the burden of proving the nonconforming nature of the signs in question, and proved the nonconforming status of three of the five signs based upon spacing requirements. The DEPARTMENT contends that the nonconformity of the signs was not an issue on which the DEPARTMENT bore the burden of proof at the hearing.

The DEPARTMENT contends that the Administrative Law Judge should have concluded that the signs were nonconforming not only for spacing violations, but also because of improper land use designations.

As detailed above, the nonconformity of the signs was not an issue, the parties agreed that: "If the billboards are found to be conforming, the billboards may be reerected," and the parties also stipulated that the signs were all destroyed under the definition of destruction set out in Rule 14-10.007(1)(d), Florida Administrative Code, which definition by its terms only applies to nonconforming signs.

UNIVERSAL'S agreements regarding the signs' nonconforming status and failures to establish their conformity, prevent UNIVERSAL from now arguing that the record and the DEPARTMENT'S evidence are insufficient. Harlev v. Lopez, 24 Fla. L. Weekly D878.

The DEPARTMENT'S second exception is accepted.

The DEPARTMENT'S third exception is to the Administrative Law Judge's Conclusion of Law No. 25 that only three of the five signs were nonconforming and that they became nonconforming with the advent of the spacing requirements under Chapter 71-971, Laws of Florida. The DEPARTMENT argues that the Administrative Law Judge should have concluded that all of the signs were nonconforming for either land use or spacing, or both.

The evidence offered by the DEPARTMENT at the hearing explained the nature of the nonconformity as resulting from noncompliance with the provisions of state law regulating the spacing of signs or limiting signs to areas designated predominantly for commercial or industrial use. As detailed above, although the DEPARTMENT'S evidence explained the nature of the nonconforming status, it did not change the fact that the nonconforming status was not at issue.

The DEPARTMENT'S third exception is accepted.

The DEPARTMENT'S fourth exception is to the Administrative Law Judge's Conclusion of Law No. 31 that the DEPARTMENT did not prove the nonconforming nature of the signs located on Interstate

95 based solely on their failure to be located in an area designated for commercial or industrial use, and concludes that the DEPARTMENT therefore cannot revoke the permits for or require removal of those signs.

As detailed above, based upon UNIVERSAL'S agreements and otherwise, the DEPARTMENT cannot belatedly be required to prove the signs' nonconformity due to improper land use designation. Under the circumstances of this proceeding, the DEPARTMENT did not have the burden of establishing the nonconformity of the signs and UNIVERSAL failed to offer any evidence of their conformity.

Mr. Garner testified that each of the signs were classified as nonconforming signs, i.e., signs that were legally erected but later failed to comply with state law. As also noted, when Mr. Garner was asked to identify the provisions of state law with which each sign failed to comply with as of July 1, 1998, he explained that the signs located along Interstate 95, and maintained under sign permit numbers BU 859-55, BU 860-55,

and BU 858-55, were all nonconforming due to land use. No objection was made to Mr. Garner's testimony at that time. UNIVERSAL'S right to object to the admission of this testimony was therefore waived. Clark v. State, 363 So. 2d 331. On cross examination, counsel for UNIVERSAL asked Mr. Garner a series of questions about the source of his information on the land use designations for the land upon which the signs are located. Mr. Garner's responses to these questions establish that the DEPARTMENT'S database reflects that the signs were not located in a commercial or industrial area, that this information is obtained from the county's records under the adopted comprehensive plan, that the information is updated constantly, and that the land use information was verified prior to the hearing. The only objection from UNIVERSAL came when Mr. Garner said he could not identify the person in Volusia County who verified the information. UNIVERSAL'S objection and motion to strike were limited to that one response and were based upon the objection that the testimony was "hearsay within hearsay." The objection and motion were overruled. This ruling was proper because the testimony elicited by UNIVERSAL established the admissibility of the database records over objection under the exception for business records provided in Section 90.803(6), Florida Statutes.

UNIVERSAL could have made other contemporaneous objections, but did not. Because UNIVERSAL never made proper, timely objections, UNIVERSAL has waived its ability to do so now. W.R. Grace & Co.-Conn. v. Doughertv, 636 So. 2d 746. UNIVERSAL cannot fail to make timely objections, elicit additional consistent testimony, and then after the fact argue that the evidence offered and admitted is insufficient.

The DEPARTMENT'S fourth exception is accepted.

The DEPARTMENT'S fifth exception is to the limitation of Conclusion of Law No. 30 that only the permits for signs maintained under permit numbers BU858-55, BU856-55, and BU855-55 should be revoked pursuant to the DEPARTMENT'S statutory authority expressed in Section 479.08, Florida Statutes.

The DEPARTMENT takes exception to the fact that Conclusion of Law No. 30 does not also conclude that: the signs maintained under permit numbers BU859-55 and BU860 55 are nonconforming due to improper land use designation; Rule 14-10.007, Florida Administrative Code, prohibits the reerection of the signs which are the subject of this consolidated proceeding; that on July 1, 1998, the signs maintained by UNIVERSAL under sign permit numbers BU85555, BU856-55, BU858-55, BU859-55, and BU860-55, lost their

nonconforming status and became illegal; and that the signs were unlawfully reerected by UNIVERSAL.

The DEPARTMENT'S recommendation regarding these additional conclusions of law are supported in the law and in the record. In addition, these conclusions are implicit in the findings of fact and conclusions of law contained in the Recommended Order and are unavoidable conclusions under applicable law. Rule 14- 10.007(1)(d), Florida Administrative Code, specifically provides that a destroyed nonconforming sign may not be reerected.

Section 479.24, Florida Statutes, states that a "sign will lose its nonconforming status and become illegal at such time as it fails to be permitted or maintained in accordance with all applicable laws, rules, ordinances, or regulations other than the provision which makes it nonconforming." As such, the law and the record establish that the subject signs lost their nonconforming status and became illegal upon their destruction and reerection.

The DEPARTMENT'S fifth exception is accepted.

FINDINGS OF FACT

1. After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact contained in paragraphs 1-3, 5-17, and 19-20 of the Recommended Order are supported by the record and are accepted and incorporated as if fully set forth herein.

   
   

2. Finding of Fact No. 4 is modified and references therein to the lack of competent evidence regarding Volusia County's land use regulations are rejected and deleted as such findings are not supported by the competent substantial evidence in the record and are not in accordance with applicable law. Finding of Fact No. 4 as herein modified is accepted and incorporated as if fully set forth herein.

   
   

3. Finding of Fact No. 18 as corrected hereinabove is supported by the record and is accepted as corrected 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 contained in paragraphs 21-24, 26-27, and 29 of the Recommended Order are fully supported in law. As such, they are adopted and incorporated as if fully set forth herein.

3. The Conclusions of Law in paragraphs No. 25 and 28 are modified to include conclusions that the signs with Permit Nos. BU859-55 and BU860-55 became nonconforming under Volusia County land use designations and became out of compliance with applicable land use changes. As modified, Conclusions of Law No.

   25 and 28 are adopted and incorporated as if fully set forth herein.

   
   

4. Conclusion of Law No. 30 of the Recommended Order is modified to conclude that Permit Nos. BU859-55 and BU860-55 should be revoked in accordance with Section 479.08, Florida Statutes, and based upon the record in its entirety is modified to include the following conclusions: The signs maintained under permit numbers BU 850-55 and BU 860-55 are nonconforming due to land use designations; Rule 14-10.007, Florida Administrative Code, prohibits the reerection of the signs which are the subject of this consolidated proceeding; on July 1, 1998, the signs maintained by UNIVERSAL under sign permit numbers BU 858-55, BU85655, BU855-55, BU859-55 and BU860-55, lost their nonconforming status and became illegal; and the signs were unlawfully reerected by UNIVERSAL. As modified, Conclusion of Law No. 30 is adopted and incorporated as if fully set forth herein.

   
   

5. Conclusion of Law No. 31 of the Recommended Order is rejected as not supported by the record or in the law.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Administrative Law Judge's Recommended Order as herein modified is adopted. It is further

ORDERED that Respondent, UNIVERSAL OUTDOOR ATLANTIC COAST,

shall remove the subject signs within thirty (30) days of the date of this Final Order. It is further

ORDERED that should Respondent, UNIVERSAL OUTDOOR ATLANTIC COAST, fail to remove the subject signs within the thirty (30) day period, the DEPARTMENT or its contractor will remove said signs and all costs associated with such removal are hereby assessed against Respondent, UNIVERSAL OUTDOOR ATLANTIC COAST.

DONE AND ORDERED this 24th day of January, 2000.

THOMAS F. BARRY, JR., P.E.

Secretary

Department of Transportation Haydon Bums Building

605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY 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 RULED 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 323990458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.

Copies furnished to:

Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Peter Wright

District Five ODA Administrator 719 South Woodland Boulevard DeLand, Florida 32721-0057

Juanice Hagan

Assistant State Right of Way Manager for Operations Department of Transportation Haydon Bums Building

605 Suwannee Street, MS 22

Tallahassee, Florida 32399-0450

Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151

Suzanne F. Hood Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Docket for Case No: 99-000889

Orders for Case No: 99-000889