STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0486T

) DOT No. 99-0014

LAMAR EAST FLORIDA, )

)

Respondent. )

________________________________) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0487T

) DOT No. 99-0015

LAMAR EAST FLORIDA, )

)

Respondent. )

________________________________) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0947T

) DOT No. 99-0042

LAMAR EAST FLORIDA, )

)

Respondent. )

________________________________) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0950T

) DOT No. 99-0043

LAMAR EAST FLORIDA, )

)

Respondent. )

________________________________)

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0952T

) DOT No. 99-0045

LAMAR EAST FLORIDA, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

On August 16 and 17, 1999, a final hearing was held in these cases in Daytona Beach, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Aileen M. Reilly, Esquire

Livingston & Reilly, P.A.

612 East Colonial Drive, Suite 350 Post Office Box 2151

Orlando, Florida 32802 STATEMENT OF THE ISSUE

Should certain outdoor advertising signs owned by Respondent, Lamar East Florida (Lamar) be removed as a result

of notices of violations brought by Petitioner, Department of Transportation (the Department) against Lamar?

PRELIMINARY STATEMENT

The Department noticed Lamar of alleged violations in relation to nonconforming signs owned by Lamar and the alleged necessity to remove those signs. The notices referred to the signs in question as re-erected following the destruction of the previous signs at those locations. Respectively, the signs are referred to as: DOAH Case No. 99-0486T/DOT Case No. 99-0014, Permit No. BN674-55; DOAH Case No. 99-0487T/DOT Case No. 99-0015, Permit No. BJ689-55; DOAH Case No. 99-0947T/DOT Case No. 99-0042, Permit No. BN681-55; DOAH Case No. 99-

0950T/DOT Case No. 99-0043, Permit No. BN682-55; and DOAH Case No. 99-0952T/DOT Case No. 99-0045, Permit No. BV232-55.

Lamar contested the notices of violation, requesting hearings pursuant to Section 120.57(1), Florida Statutes. The Department referred the cases to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal hearing. The cases were assigned and the hearing conducted by this Administrative Law Judge.

The parties filed a prehearing stipulation in reference to the cases. The prehearing stipulation included stipulated facts.

Counsel for the Department requested official recognition be given to Rule 14-10.007, Florida Administrative Code, and

23 C.F.R. Section 750.707. No opposition was stated to that request. The request was granted.

At hearing the Department called Michael Kuyphers, Richard Mauldin, and Jaunice Hagan as its witnesses. The Department offered Petitioner's Exhibit Nos. 1-3 which were admitted. The Department's Exhibit No. 4 was denied admission. Lamar presented Dennis Dewar as its witness.

Lamar's Exhibit No. 1 was admitted, limited to corroboration of other evidence in the record. Lamar's Exhibit No. 2 was admitted.

A hearing transcript was filed on September 14, 1999.

The parties timely submitted proposed recommended orders which have been considered in preparing this recommended order.

FINDINGS OF FACT

1. Lamar is licensed pursuant to Chapter 479, Florida Statutes, to conduct the business of outdoor advertising. The Department regulates the outdoor advertising business in accordance with that law.

2. In 1964, outdoor advertising signs that are the subject of the proceeding were constructed along US Highway 1 in Volusia County, Florida. Subsequently, in 1971, outdoor advertising signs which are the subject of the proceeding were constructed along Interstate 95 in Volusia County, Florida. The signs in both places are subject to permits issued by the Department to Lamar. The signs were legally erected but became nonconforming based upon their spacing in relation to other permitted outdoor advertising signs.

3. The Lamar signs and their spacing are described as follows:

   Permit No. BN674-55, East of Interstate 95,

   3.183 miles north of NEB790079 Hull Road is 881 feet from a permitted sign to the north.

   
   

   Permit No. BJ689-55, East of Interstate 95,

   2.588 miles north of NEB790079 Hull Road is

   343 feet from a permitted sign to the north.

   
   

   Permit No. BN681-55, East of US Highway 1,

   0.088 miles north of Pine Tree Drive is 216 feet from a sign under Permit No. BU855.

   
   

   Permit No. BN682-55, East of US Highway 1,

   0.027 miles north of Hull Road is within

   332 feet of a permitted sign to the north.

   
   

   Permit No. BV232-55, East of US Highway 1, 0.0129 miles north of Pine Tree Drive is

   216 feet from a permitted sign to the north.

   
   

   Each of the Lamar signs is within 660 feet of the first named highway or interstate, within Volusia County, Florida.

4. Lamar owns and maintains the outdoor advertising signs that have been identified.

5. On June 19, 1998, under dry weather conditions, a series of lightening strikes started a wildfire in a remote swampy area. Before the fire ended in July of 1998 its dimensions were extensive. The wildfire burned in Volusia and Flagler counties, Florida, west of Daytona Beach and Ormond Beach, Florida, and extending into the city of Ormond Beach. Eventually, it consumed the Lamar signs that have been described to the extent that the up-right wooden supports of each of the signs were substantially burned. This destruction took place on July 1, 1998. The degree of destruction was within the definition of "destroyed" set out in Rule 14- 10.007(1)(d), Florida Administrative Code. Before their destruction the signs had been lawfully permitted by the Department.

6. Interstate 95 and US Highway 1 had been closed to the public before the Lamar signs were "destroyed." The attempt by Lamar to gain access to the outdoor advertising signs was not successful because of the road closures by government authorities.

7. Following their destruction, Lamar re-erected the structures by reinstalling the signs at the same locations using substantially the same type of materials as had been

   previously found in the structures being replaced. None of the materials used to re-erect the signs were part of the sign structures immediately before the destruction of the original signs by the wildfire. When re-erected the signs were the same size, shape, and height of the destroyed signs.

8. Lamar does not own the property where the signs are located. Lamar operates pursuant to agreements with property owners by which Lamar has the right to maintain the signs. Upon the expiration or termination of the agreements with the property owners, Lamar may remove all of its sign materials from the properties and absent an agreement no longer maintain the signs. Lamar has no other business interest in the properties where the signs are located. The purpose of the outdoor advertising signs is to lease advertising space to third parties for advertising purposes which generates income to Lamar. Each outdoor advertising sign in question provides that income.

9. The suppression effort directed to the fire was limited due to the remoteness of the swampy area in which the fire originated and a paucity of manpower and equipment. As a consequence, the firefighting effort did not begin in earnest until June 20 or 21, 1998. The fire was combated through efforts of the Florida Department of Agriculture, Division of

   Forestry and other national, state, and local firefighting organizations.

10. The fuel for the fire, that is, bushes and trees, was dry. The weather conditions were highlighted by low relative humidity and a very high dispersion index. The smoke from the fire rose in the atmosphere and carried its embers from the west to the east. The fire came out of the Hull Cypress Swamp and the embers picked up by the wind crossed fire control lines and continued to spread to the east. Eventually, the two main fingers of the fire burned together on July 2, 1998. Before it was suppressed the fire, known as the Rodeo Road Fire, would consume 61,500 acres.

11. The progress of the fire is depicted in Petitioner's Exhibit No. 1, a map of the area in question, to include the area in which the subject signs were located. Petitioner's Exhibit No. 3 portrays the location of the signs more precisely.

12. More specifically, the conditions in the swamp were extremely dry at the time the fire commenced as evidenced by the available dry fuel load in the swamp, which fuel load would normally be wet. Under wet conditions the fire would either not have burned or would have meandered. Given the dry conditions in the swamp in June 1998, there was a lot more fuel available to burn.

13. East of the swamp the land that was burned was constituted of pastures, range land, and forest lands. Some areas had been subjected to prescribed burning to control available fuel loads in an incidence of wildfire but other areas had not been subjected to prescribed burning before the wildfire. Had property owners in the area affected by the wildfire conducted prescribed burning before that event it would have reduced the fuel load available for incineration.

14. In some places in the advance of the wildfire the fuel loads were heavy, in other places less so, in that the property was constituted of pastures.

15. In addressing the fire, the firefighters' priorities, in turn, included their safety; the safety of the public; the protection of property, to include structures; and finally the protection of resources such as timberland. By their efforts in addressing this incident the firefighters managed to save homes and businesses by creating defensible space around those structures against the on-set of the fire. The area of defensible space necessary is at least 30 feet, which reduces the chance of direct flame impact on the structure.

16. Another technique that was employed to address the consequences of the wildfire was backfiring or imposition of the "black line concept." This is a nationally recognized

    firefighting technique. It is used when a fire is burning in an area that is inaccessible or has a potential to overrun a fire control line in a setting in which unburned fuel exists between the main fire and the control line. The unburned material is then deliberately burned before the main fire reaches that area to protect the control line from the main fire. The backfire is best employed when the weather conditions are conducive to its use, including wind direction and levels of humidity. During the time that the Rodeo Road Fire took place the use of backfires was not especially successful due to the dryness of the fuels.

17. In the course of the Rodeo Road Fire, Georgia Pacific now known as the Timber Company, used a backfire to protect its property against the northward and eastward progress of the wildfire. The backfire was lit on June 28, 1999. The backfire by the Timber Company did not control the wildfire. It was successful on the west flank of the wildfire but unavailing on the east flank where the backfire by the Timber Company intersected the wildfire and the wildfire continued its eastward progress which had already begun.

18. The setting of the backfire by the Temper Company was an appropriate tactic. Its outcome was inconsequential when considering the progress of the wildfire and its eventual destruction of the signs.

19. Nor is the decision of a California fire crew to use a backfire to protect itself and its equipment found to have meaningful significance in promoting the forward progress of the wildfire to the east where the wildfire would destroy the signs. The backfire lit by the fire crew occurred on July 1, 1998. Backfiring to secure safety is an approved tactic for firefighters in making an independent judgment to protect their lives.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

21. The signs at issue owned, operated, and maintained by Lamar are located on Interstate 95, a portion of the interstate highway system and US Highway 1, a primary highway system. Thus they were subject to the permitting requirements set forth in Section 479.07, Florida Statutes. The Department administers that permit process in accordance with its duties set forth in Section 479.02, Florida Statutes. That section calls upon the Department to administer and enforce provisions of Chapter 479, Florida Statutes, and the agreement between the State of Florida and the United States Department of Transportation relating to the spacing of the signs, among

    other issues, in accordance with Title 1 of the Highway Beautification Act of 1965 and Title 23 of the United States Code and Federal Regulations. The Department regulates signs permitted in zoned and unzoned commercial and industrial areas pursuant to those provisions.

22. To the extent that Lamar's permitted signs violate any of the provisions of Chapter 479, Florida Statutes, the Department may revoke the permits under authority set forth in Section 479.08, Florida Statutes. The Department's authority extends to the right to remove those signs following permit revocation. The opportunity for removal is described in Section 479.10, Florida Statutes.

23. The original signs were erected in 1964 and 1971 before spacing requirements were established for the placement of outdoor advertising signs or the requirement that signs be located in areas designated for commercial or industrial use. The circumstances changed with the passage of Chapter 71-971, Laws of Florida. Section 2 to that enactment amended Section 479.02, Florida Statutes, and called upon the State of Florida through its governor to execute agreements in accordance with Title 1 of the Highway Beautification Act of 1965 and Title 23 of the United States Code and Federal Regulations, pertaining to the regulation of the spacing of signs, among other issues, that were permitted in zoned and unzoned commercial and zoned

    and unzoned industrial areas and to determine unzoned commercial and industrial areas. Chapter 71-971, Section 2, Laws of Florida went on to establish that spacing between signs would be 1,000 feet on the interstate and 500 feet on primary highways on the same side of the highway facing the same direction. Chapter 71-971, Section 6, Laws of Florida created Section 479.11, Florida Statutes, pertaining to the placement of signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to the agreement that had been described at Section 2 to the Act.

    The agreement called for in Chapter 71-971, Section 2, Laws of Florida, between the governor and the United States Department of Transportation was made on January 27, 1972, as incorporated in Rule 14-10.009, Florida Administrative Code.

24. With the advent of the spacing requirements that became effective under Chapter 71-971, Laws of Florida, the signs in question became nonconforming as to spacing, that is to say the signs were lawful when erected but were out of compliance with the law passed upon the subsequent date. See Section 479.01(14), Florida Statutes (1997).

25. On July 1, 1998, the signs were "destroyed" within the meaning of Rule 14-10.007(1)(d), Florida Administrative Code, effective June 28, 1998. Under Rule 14-10.007(1)(f), Florida Administrative Code, effective June 28, 1998, the

    nonconforming signs could have been re-erected if destroyed by vandalism, or other criminal, or tortious act. The nature of that re-erection could be in kind.

26. Florida, in creating the exception for the re- erection in kind of the nonconforming signs destroyed in relation to vandalism or other criminal or tortious acts has acted consistent with 23 C.F.R. Section 750.707(6), a federal enactment dealing with nonconforming signs, as contemplated by the agreement between the State of Florida and the Federal government concerning the Highway Beautification Act of 1965. The federal law at 23 C.F.R. Section 750.707(6), allows states to permit re-erection in kind for signs destroyed due to vandalism and other criminal and tortious acts.

27. As was its burden, the Department proved the nonconforming nature of the signs in question based upon spacing requirements and their destruction by the wildfire. In turn, Lamar has failed to prove that the nature of the destruction was an act of vandalism or other criminal act or by commission of a tort. The failure of property owners to conduct controlled burning prior to the wildfire and the setting of backfires by the Timber Company and the California fire crew were not acts of vandalism or other forms of crimes and did not constitute torts.

28. Alternatively, Lamar argues that it is entitled to repair and rebuild nonconforming signs in kind based upon the expectations of CS/HB 1535 and in particular Sections 24 which states:

    Notwithstanding any other law, regulation, or local ordinance to the contrary, the owners of any nonconforming buildings, houses, businesses, or other appurtenances to real property which were damaged or destroyed during the wildfires that occurred during June and July of 1998, may elect to repair or

    rebuild such nonconforming structures in like-kind, unless prohibited by Federal law or regulation.

    
    

    Although the wildfire at issue occurred during June and July 1998 and destroyed the nonconforming structures, even assuming that the signs constituted one of the forms of property subject to repair or rebuilding, in this instance the signs could not be rebuilt because of the prohibition in the Federal law found at 23 C.F.R. Section 750.707(6), limiting the re- erection in kind for destroyed nonconforming signs to those instances where the destruction was due to vandalism or other criminal or tortious acts.

29. Under the circumstances, the permits for the signs should be revoked pursuant to Section 479.08, Florida Statutes, and removed pursuant to Section 479.10, Florida Statutes.

30. The Department failed to present competent evidence concerning the signs on Interstate 95 and the alleged failure to be located in an area designated for commercial or industrial use.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law reached, it is

RECOMMENDED:

That a final order be entered which revokes the sign permits that have been described and requires the removal of those signs within 30 days of the entry of the final order.

DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge Division of Administrative

Hearings

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

this 21st day of October, 1999.

COPIES FURNISHED:

Robert M. Burdick, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

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

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

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: 99-000950

Orders for Case No: 99-000950