STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NOS.: 99-0904T

99-0905T

WHITECO METROCOM DOT CASE NOS.: 99-0022 99-0023

Respondent.

/ DEPARTMENT OF TRANSPORTATION,

Petitioner, DOAH CASE NOS.: 99-0982T 99-0984T

vs. DOT CASE NOS.: 99-0029

99-0031

CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION

Respondent.

/

FINAL ORDER

This proceeding was initiated by Requests for Formal Administrative Hearing filed by Respondent, WHJTECO METROCOM, and Respondent, CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION

(hereinafter collectively CHANCELLOR), on January 14, 1999 and January 25, 1999. The requests for administrative hearing were filed in response to Notices of Violation issued by Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), for

CHANCELLOR'S sign structures located on US 1 and Interstate 95, in Volusia County, Florida. The Notices were issued because CHANCELLOR 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 Stephen F. Dean, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. On April 20, 1999, Judge Dean issued an order consolidating the cases and setting the matters for hearing on August 27-29, 1999. On August 25, 1999, Suzanne F. Hood, a duly appointed Administrative Law Judge to whom these matters were reassigned, issued an "Order Canceling Hearing and Requiring

Joint Stipulation." In her order, Judge Hood ordered the parties to file a "Joint Stipulation of Facts as to the status of the subject billboards as conforming or nonconforming and the reasons therefore" and a "Joint Stipulation of Record Evidence, listing specific testimony and exhibits from the consolidated cases beginning with DOAH Case Nos. 99-0486T, 99-0903T, and 99-0659T."

The parties entered into and filed a Joint Stipulation dated August 25, 1999, which is attached hereto and incorporated by reference. Thereafter, DOAH issued an order severing several of the originally consolidated cases and closing the files on those cases. On September 20, 1999, the DEPARTMENT filed its "Notice of Submitting Record." On September 22, 1999, CHANCELLOR submitted its Proposed Recommended Order, and on September 28, 1999, the DEPARTMENT filed its Proposed Recommended Order.

On October 28, 1999, the Administrative Law Judge issued her Recommended Order. On November 5, 1999, the DEPARTMENT filed its exceptions to the Recommended Order, and on November 10, 1999, CHANCELLOR submitted its exceptions to the Recommended Order. On November 15, 1999, CHANCELLOR filed responses to the DEPARTMENT'S exceptions and on November 18, 1999, the DEPARTMENT filed responses to CHANCELLOR'S exceptions.

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 Whiteco Metrocom (now known as Chancellor Media Whiteco Outdoor Corporation) and Respondent Chancellor Media Whiteco Outdoor Corporation (Chancellor) be removed as a result of notices of violations brought by Petitioner Department of Transportation (the Department) against Chancellor?"

BACKGROUND

On January 7, 1999, the DEPARTMENT issued Notices of Violation No. 09 BU716 and 09 BU714 because CHANCELLOR reerected its nonconforming outdoor advertising signs which were destroyed by fire. On January 14, 1999, CHANCELLOR filed requests for administrative hearing concerning Notices of Violation No. 09 BU716 and 09 BU714, to which the DEPARTMENT assigned case numbers 99-0022 and 99-0023.

On January 19, 1999, the DEPARTMENT issued Notices of Violation No. 09 BU7 12 and 09 BU709 because CHANCELLOR reerected its nonconforming outdoor advertising signs which were destroyed by fire. On January 25, 1999, CHANCELLOR filed requests for administrative hearing concerning Notices of Violation No. 09 BU7

12 and 09 BU709, to which the DEPARTMENT assigned case numbers 99-0029 and 99-0031.

CHANCELLOR initially 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, CHANCELLOR contends that had CHANCELLOR been allowed to protect its property, the damage sustained as a result of the fires would not have occurred.

CHANCELLOR'S EXCEPTIONS TO RECOMMENDED ORDER

CHANCELLOR'S first exception is that the Administrative Law Judge improperly failed to consider all of CHANCELLOR'S theories and arguments concerning the destruction of the signs at issue in these proceedings.

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

CHANCELLOR submitted a Proposed Recommended Order for consideration by the Administrative Law Judge. Therein, CHANCELLOR extensively argued its theories, claiming that the Division of Forestry breached a statutorily imposed obligation to protect CHANCELLOR'S signs. Judge Hood acknowledged CHANCELLOR'S Proposed Recommended Order in her Recommended Order. Judge Hood specifically concluded that CHANCELLOR failed to prove that the signs were destroyed "by an act of vandalism or other criminal act or by commission of a tort." A tort, or tortious act, denotes conduct, whether of act or omission, of such a character as to subject an actor to liability. CHANCELLOR'S claims that the Division of Forestry acted tortiously and that the Administrative Law Judge may have failed to find the Division of Forestry responsible because she did not want the Division to incur any liability for the signs' loss, are without basis.

CHANCELLOR'S argument that Conclusion of Law Number 28 does not

encompass CHANCELLOR'S theory that the Division of Forestry tortiously failed to protect its signs is without merit.

CHANCELLOR'S argument in this regard is that the Administrative Law Judge must have erred because she did not conclude that the Division of Forestry had a statutory duty to protect CHANCELLOR'S signs from damage by wildfire. To the contrary, the lack of such a conclusion is supported by the record and the law. 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. City of Daytona Beach v. Palmer, 469 So. 2d

121 (Fla. 1985). In addition, the Florida legislature has declined to impose such a duty by statute. § 590.02(3), Fla. Stat. CHANCELLOR'S argument that the Division of Forestry tortiously failed to protect the signs is without basis in fact or law.

CHANCELLOR 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 hearing, the parties stipulated that, on July 1 or 2, 1998, each of the 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 this rule incorporated language that suggested that the force of destruction must be an Act of God. See, former Rule 14-10.007(2)(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.

CHANCELLOR continues, arguing that Judge Hood's decision to not make certain findings requested by CHANCELLOR means that her conclusions of law are not based upon competent substantial evidence. As acknowledged by CHANCELLOR the issue 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 evidence was offered that would support CHANCELLOR'S theory that some person or entity had a duty to engage in prescribed burning to protect CHANCELLOR'S signs. Neither the Division of Forestry nor any other person or entity had a duty to protect CHANCELLOR'S signs. The record support cited by CHANCELLORis contrary to the competent substantial evidence in the record. The DEPARTMENTis limited to ascertaining whether the Administrative Law Judge's factual fndings are supported by competent substantial evidence; the DEPARTMENT cannot make additional factual findings and should

not reinterpret the evidence. City of North Port v. Consolidated Minerals. Inc., 645 So. 2d 485 (Fla. 2d DCA 1994); Heifetz v.

Dep't of Business Reg, 475 So. 2d 1277 (Fla. 1st DCA 1985).

CHANCELLOR essentially takes issue with either the Administrative Law Judge's failure to make findings, her failure to "recognize" evidence, or her rejection of CHANCELLOR'S proposed findings. A similar claim was characterized by the Fourth District Court of Appeal as a request to reweigh the evidence considered by the Administrative Law Judge. Boyd v.

Dep't of Revenue, 682 So. 2d 1117, 1118 (Fla. 4th DCA 1996). The theories to which these additional findings would purportedly relate were argued by CHANCELLOR, were considered by Judge Hood, and were properly rejected because they are incorrect. Because the material issues were decided and findings of fact were made on those issues, the DEPARTMENT cannot make additional findings and remand is not appropriate. City of North Port, 645 So. 2d at 487; Intelligence Group. Inc. v. Dep't of State, 610 So. 2d 589 (Fla 2d DCA 1992). In addition, Chapter 120, Florida Statutes, no longer requires an Administrative Law Judge to make an explicit ruling on each of a party's proposed findings.

CHANCELLOR also criticizes Judge Hood for issuing a Recommended Order "almost identical to the Recommended Order entered 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. CHANCELLOR correctly notes the orders' similarities. However, such a result is inevitable where the issues in each case were virtually identical, all cases involve the destruction of signs in the same geographic area, by the same wildfire, and, no original testimony was entered in this proceeding. All of the testimony in this case came from other proceedings. CHANCELLOR'S criticisms are baseless and not supported by the record.

CHANCELLOR'S first exception is rejected.

CHANCELLOR'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 substantial competent evidence that demonstrated that firefighting efforts employed by the firefighters to save property, such as homes and businesses, were not used on CHANCELLOR'S signs, and that, had such tactics been employed, the signs, like the homes and businesses, could have been saved.

Judge Hood did not conclude that the firefighters were required to protect CHANCELLOR'S signs from damage because neither the record nor the law support such a conclusion.

CHANCELLOR is not entitled to additional findings of fact because

Judge Hood considered the evidence and made findings of fact on the material issues. Intelligence Group, Inc., 610 So. 2d 589. Moreover, there is no longer any provision in Chapter 120, Florida Statutes, requiring an Administrative Law Judge to make an explicit ruling on each of the party's proposed findings.

CHANCELLOR'S second exception is rejected.

CHANCELLOR'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." CHANCELLOR argues that the wildfires at issue occurred in June and July, 1998, not June 28, 1999. However, there is no reference to any date whatsoever in Finding of Fact No. 17 of the Recommended Order. The date to which CHANCELLOR refers appears in Finding of Fact No. 18 of the Recommended Order.

The record establishes that the evidence at the hearing concerned a backfire lit on June 28, 1998. No evidence was presented concerning any fires during 1999.

CHANCELLOR'S third exception is accepted.

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

CHANCELLOR argues that Findings of Fact No. 19 and 20 are contrary to other findings of fact rendered by the Administrative Law Judge, such as Finding of Fact No. 17, where the Administrative Law Judge found that during the time the Rodeo Road Fire took place, the use of backfires was not especially successful. CHANCELLOR also argues that the statement that the backfire did not have meaningful significance is not consistent with the actual spread of the wildfire.

CHANCELLOR continues, arguing that the backfires had to contribute to the spread of the wildfire, and that because the backfires were lit by human hands, and they did not contain the spread of the wildfire, it must be concluded 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, CHANCELLOR argues, the spread of the wildfires was not the result of an Act of God. If the spread of the wildfires was not the result of an Act of God, their spread and the destruction caused thereby, must be attributed to something else. The "something else" that contributed to the destruction to the signs

was, according to CHANCELLOR, the result of tortious conduct. Because the backfires performed by the Division of Forestry were unsuccessful, CHANCELLOR alleges that the Division of Forestry failed to adequately perform its duties, and as such, was negligent. According to CHANCELLOR, this alleged negligence is one of the causes of the damage to its signs, and, as such, CHANCELLOR contends it is entitled to reerect its signs pursuant to Rule 14-10.007(1)(f), Florida Administrative Code.

The record reflects that the findings expressed in Findings of Fact No. 19 and 20 are supported by competent substantial evidence. The DEPARTMENT can neither make supplemental findings nor disturb findings supported by competent substantial evidence. Heifetz, 475 So. 2d 1277.

CHANCELLOR'S fourth exception is rejected.

CHANCELLOR'S fifth exception is to the Administrative Law Judge's Conclusion of Law No. 25 wherein she concluded that the signs became nonconforming.

CHANCELLOR argues that the only evidence in support of the nonconformity was hearsay within hearsay, and therefore not sufficient in itself to support a finding of fact or conclusion of law. CHANCELLOR argues that testimony of John Garner, the DEPARTMENT'S witness did not and cannot establish the signs' nonconformity. However, Mr. Garner's testimony is not part of this record and further analysis of his testimony and CHANCELLOR'S shortcomings in responding to his testimony in other proceedings is unnecessary. Mr. Garner's testimony is not required in this case because CHANCELLOR unequivocally stipulated that the subject signs are nonconforming:

The four signs were lawfully erected, but at the time of destruction failed to comply with certain provision of Chapter 479, Florida Statutes, enacted after erection of the signs that:

1. with respect to the signs located along Interstate 95, require certain minimum spacing between off-premise outdoor advertising signs and restrict off-premise outdoor advertising signs to areas designated predominately for commercial or industrial use under -the future land use map of the comprehensive plan governing the area; and

   
   

2. with respect to the signs located along US Highway 1, require certain minimum spacing

between off-premise outdoor advertising signs.

CHANCELLOR and the DEPARTMENT also agreed that: "If the billboards are found to be conforming, the billboards may be reerected." Thus, CHANCELLOR unequivocally agreed that the signs were nonconforming due to both spacing and improper land use designations, but left itself an opportunity to establish the signs were, in fact, conforming. CHANCELLOR never availed itself of that opportunity and never presented any evidence to even suggest that the signs were conforming. CHANCELLOR cannot unequivocally agree to the nonconformity of the signs and then argue their nonconformity was not established. Esch v. Forster, 123 Fla. 905, 168 So. 229 (1936); Harley v. Lopez, 24 Fla. L. Weekly D878 (Fla. 3d DCA April 17, 1999). Administrative Law Judges are bound by parties' stipulations and unless it is established that stipulations are the result of either fraud or a mistake of material fact, a trier of fact is not authorized to relieve parties from the binding effect of their stipulations.

Schrimsher v. School Bd. of Palm Beach County, 694 So. 2d 856

(Fla. 4th DCA 1997); Fawaz v. Florida Polvmers, 622 So. 2d 492 (Fla. 1st DCA 1993).

CHANCELLOR'S fifth exception is rejected.

CHANCELLOR'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, or other criminal or tortious acts are the only exceptions allowed by 23

C.F.R. Section 750.707(6).

CHANCELLOR 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 CHANCELLOR, 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 apply to those signs.

CHANCELLOR 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, there is no evidence in this record of statutory interpretation or otherwise to establish that the unambiguous words chosen by the legislature in House Bill 1535 should not be given their plain meaning. Had the legislature intended to establish an exemption from Rule 14-10.007(1)(d), Florida Administrative Code, it would have said so.

CHANCELLOR'S sixth exception is rejected.

CHANCELLOR'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 and finding that CHANCELLOR failed to prove that the signs were destroyed as a result of vandalism, or other criminal or tortious act. CHANCELLOR again 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. CHANCELLOR argues that the Administrative Law Judge failed to make findings of fact that CHANCELLOR believes support its claim that the Division of Forestry had a duty to protect the signs from the wildfires, and that such duty was breached. CHANCELLOR'S theory that the Division of Forestry tortiously failed to protect its signs is without merit in law or fact.

CHANCELLOR essentially takes issue with either the Administrative Law Judge's failure to make findings, or failure to recognize alleged evidence that the Division of Forestry had a statutory duty to protect CHANCELLOR'S signs from damage by the wildfires. 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, Citv of Daytona Beach v. Palmer, 469 So. 2d 121 (Fla. 1985). In addition, the Florida legislature has declined to impose such a duty by statute. § 590.02(3), Fla. Stat. CHANCELLOR'S argument that the Division of Forestry, or anyone else, tortiously failed to protect the signs is without basis in law or fact.

As acknowledged by CHANCELLOR the issue 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 evidence was offered that would support CHANCELLOR'S theory that some person or entity had a duty to protect CHANCELLOR'S signs. CHANCELLOR also cannot prevail on a theory that the Division of Forestry failed to take the same measures to protect its signs that it

took save people's homes and business establishments because neither the evidence nor the law support such findings or conclusions. The Administrative Law Judge properly considered all evidence and theories and made findings supported by competent evidence. The DEPARTMENT cannot reinterpret that evidence. Heifetz, 475 So. 2d 1277.

The theories to which these additional findings would purportedly relate were argued by CHANCELLOR, were considered by Judge Hood, and were properly rejected because they are incorrect. Because the material issues were decided and findings of fact were made on those issues, remand is not appropriate.

Intelligence Group, Inc., 610 So. 2d 589, does not support remand in this case. There, the hearing officer failed to make any findings because he erroneously believed the appellant was immune from disciplinary action. Judge Hood did not fail to make findings, she made findings supported by competent substantial evidence and additional findings are neither appropriate nor necessary.

CHANCELLOR'S seventh exception is rejected.

CHANCELLOR'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 six signs.

CHANCELLOR 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 CHANCELLOR, 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.

As detailed above, CHANCELLOR incorrectly construes 23

C.F.R. Section 750.707(6) as authorizing reconstruction of the subject signs. There is no evidence in this record that the legislature intended the provisions of House Bill 1535 to constitute an exemption from Rule 1410.007(1)(d), Florida Administrative Code. Had the legislature intended to establish an exemption from Rule 14-10.007(1)(d), Florida Administrative Code, it would have said so. Moreover, House Bill 1535 concludes with the caveat "unless otherwise prohibited by Federal law or

regulation" and 23 C.F.R. Section 750.707(6), is such a federal regulation.

CHANCELLOR'S eighth exception is rejected.

CHANCELLOR'S ninth exception is to Conclusion of Law No.

30 wherein the Administrative Law Judge found that the permits for CHANCELLOR'S signs should be revoked and that the signs should be removed.

CHANCELLOR again argues that it has made a prima facie showing of tortious conduct by the Division of Forestry, that Rule 14-10.007, Florida Administrative Code, does not prohibit the reerection of the signs, and, therefore, the Administrative Law Judge's conclusion must be wrong.

As detailed above, the Administrative Law Judge properly concluded that CHANCELLOR 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 1410.007(1)(f), Florida Administrative Code, apply to the signs that are the subject of this consolidated proceeding, and 23

1. Section 750.707(6) and the provisions of House Bill 1535 do not authorize the reerection of the signs.

   CHANCELLOR'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 certain signs are located. This conclusion is clearly erroneous because no evidence was required. The Statement of Admitted Facts contained in the parties' Joint Stipulation includes the following stipulated facts:

   
   

   The signs that were destroyed by wildfire were classified by the Department as nonconforming at the time the signs were destroyed by wildfire upon the following facts:

   
   

   The sign maintained under sign Permit Number BU 716-55, was located Seven hundred seventy-six feet (776') from another sign maintained under Department of Transportation sign permit number BU966, and was located on property within an area which was not designated predominately for commercial or

   industrial use under the future land use map of the comprehensive plan governing the area.

   
   

   The sign maintained under sign Permit Number BU 714-55, was located Seven hundred twenty three feet (723') from another sign maintained under Department of Transportation sign permit number BLA 11, and Three hundred forty three feet (343') from another sign maintained under Department of Transportation sign permit number BJ689, and was located on property within an area which was not designated predominately for commercial or industrial use under the future land use map of the comprehensive plan governing the area. (emphasis added)

   In addition, CHANCELLOR and the DEPARTMENT further agreed:

   
   

   The four signs were lawfully erected, but at the time of destruction failed to comply with certain provision of Chapter 479, Florida Statutes, enacted after erection of the signs that:

   
   

   1. with respect to the signs located along Interstate 95, require certain minimum spacing between off-premise outdoor advertising signs and restrict off-premise outdoor advertising signs to areas designated predominately for commercial or industrial use under the future land use map of the comprehensive plan governing the area; and

      
      

   2. with respect to the signs located along US Highway 1, require certain minimum spacing between off-premise outdoor advertising signs. (emphasis added)

The Administrative Law Judge's conclusion that the record contained no competent evidence concerning land use, and her failure to find that the signs in question were located on property not designated for commercial or industrial use, was a clear departure from the essential requirements of law. The DEPARTMENT and CHANCELLOR knowingly agreed to numerous stipulations and, in fact, modified their earlier stipulations, thereby removing any doubt that the signs' nonconformity was established as a matter of law and no additional proof was required as to nonconformity. CHANCELLOR chose to offer no evidence of the signs' conformity notwithstanding the parties'

agreement that "If the billboards are found to be conforming, the billboards may be reerected."

CHANCELLOR'S arguments and the Administrative Law Judge's conclusions regarding proof of nonconformity are not supported by the record or the law. 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). The Administrative Law Judge should have acknowledged the binding effect of the stipulations and concluded that the signs maintained by CHANCELLOR were, at the time the signs were destroyed by wildfire, located on property within an area "which was not designated predominately for commercial or industrial use under the future land use map of the comprehensive plan governing the area," in accordance with the parties' stipulation.

The DEPARTMENT'S first exception is accepted.

The DEPARTMENT'S second exception is to the Administrative Law Judge's Conclusions of Law No. 25 and 28 that the DEPARTMENT had the burden of proving the nonconforming nature of the signs in question, and that the signs became nonconforming upon the advent of the spacing requirements of Chapter 71-971, Laws of Florida. As detailed above, this conclusion as it relates to the burden of proof and the signs' nonconformity, is clearly erroneous based upon the parties' stipulations, and under the law. The Administrative Law Judge departed from the essential requirements of the law when she failed to enforce the parties' stipulations and failed to conclude that certain signs were also nonconforming due to improper land use designation.

The DEPARTMENT'S second exception is accepted.

The DEPARTMENT'S third exception is to the Administrative Law Judge's Conclusion of Law No. 31 that the DEPARTMENT failed to prove that the signs located on Interstate 95 were not located in an area designated for commercial or industrial use. Because this conclusion implies that the DEPARTMENT had the burden of proving these matters, and, as detailed above, the DEPARTMENT had no such burden, this conclusion departs from the essential requirements of the law.

The DEPARTMENT'S third exception is accepted.

The DEPARTMENT'S fourth exception is to the limitation of the Administrative Law Judge's Conclusion of Law No. 30 that the permits for the signs should be revoked pursuant to the DEPARTMENT'S statutory authority expressed in Section 479.08,

Florida Statutes. The DEPARTMENT argues that the Administrative Law Judge should also have concluded that:

Rule 14-10.007, Florida Administrative Code, prohibits the reerection of the four signs which are the subject of this consolidated proceeding; on July 1, 1998, the signs maintained by CHANCELLOR under sign permit numbers BU 716-55, BU 714-55, BU

1. , and BU 70955, lost their nonconforming status and became illegal; and the four signs were unlawfully reerected by CHANCELLOR.

   
   

   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." The signs in question lost their nonconforming status and became illegal upon their destruction and reerection as a matter of law.

   The DEPARTMENT'S fourth exception is accepted.

   
   

   FINDING 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 through 3, 5 through 17, and 19 through

      20 of the Recommended Order are supported by the record and are accepted.

      
      

   2. Findings of Fact contained paragraph 4 regarding the lack of evidence regarding the designated land use for the areas in which the signs are located are rejected and deleted as not supported by competent substantial evidence. The Findings of Fact contained in paragraph 4 as herein modified are adopted and incorporated by reference as if fully set forth herein.

      
      

   3. Finding of Fact No. 18 is modified as hereinabove corrected, and as modified is adopted and incorporated by reference 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 through 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 25 and 28 are modified to include conclusions that the signs became nonconforming under 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. Based upon the record in its entirety, Conclusion of Law No. 30 of the Recommended Order is modified to include the following conclusions: The signs 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 CHANCELLOR under sign permit numbers BU 858-55, BU856-55, BU855-55, BU859-55 and BU860-55, lost their nonconforming status and became illegal; and the signs were unlawfully reerected by CHANCELLOR. 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 subject to the above limitations and exclusions, the Administrative Law Judge's Recommended Order and recommendation therein are adopted. It is further

ORDERED that Respondent, WHITECO METROCOM, and Respondent, CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION, shall remove the

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

ORDERED that should Respondent, WHITECO METROCOM, and Respondent. CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION, 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, WHITECO METROCOM, and Respondent, CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION.

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

THOMAS F. BARRY, J.R., P.E.

Secretary

Department of Transportation Haydon Burns 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 32399-0458, 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

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

Juanice Hagan

Assistant State Right of Way Manager for Operations

Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 22

Tallahassee, Florida 32399-0450

Suzanne F. Hood Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Attachment

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NOS.: 99-0904T

99-0905T

WHITECO METROCOM DOT CASE NOS.: 99-0022 99-0023

Respondent.

/ DEPARTMENT OF TRANSPORTATION,

Petitioner, DOAH CASE NOS.: 99-0982T 99-0984T

vs. DOT CASE NOS.: 99-0029

99-0031

CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION

Respondent.

/

JOINT STIPULATION

The parties, by and through their undersigned counsel, submit the following Joint Stipulation pursuant to the order vacating the Final Hearing scheduled in this matter for August

26 and 27, 1999, and respectfully request that the above captioned matters be decided on the basis of the matters stipulated to herein, together with the records identified herein.

1. PRELIMINARY MATTERS

   
   

   The Department of Transportation (hereinafter "Department") hereby withdraws the Notices of Revocation which are the subject of the following above captioned proceedings: DOAH Case Numbers: 99-0987T, 99-0988T, 99-0989T, 99-099OT, and 99-099lT.

   
   

   The Department also hereby withdraws the Notices of Violation which are the subject of the following above captioned proceedings: DOAH Case Numbers: 99-0983T and 99-0986T, which

   Notices relate to the signs maintained under Department of Transportation sign permit numbers BU 707-55 and BU 708-55. Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation ("Chancellor") does not object to such withdrawal, and the parties jointly request entry of an Order closing the Division's file in those matters and relinquishing those matters to the Department for entry of a Final Order dismissing those cases. Additionally, the parties acknowledge that Department of Transportation sign permit number BU 711-55 has been canceled by Chancellor, and that therefore DOAH Case Number 99-0985T is now moot. The parties jointly request entry of an Order closing the Division's file in that matter and relinquishing that matter to the Department for entry of a Final Order dismissing the case.

2. NATURE OF THE CONTROVERSY

   
   

   Chancellor owns and maintains two off-premise outdoor advertising signs located along interstate 95 in Volusia County, Florida. Chancellor also owns and maintains two off-premise outdoor advertising signs located along US Highway 1 in Volusia County, Florida. These four off-premise outdoor advertising signs are generally hereinafter referred to as "signs". These four signs were destroyed by fire on July 1 or 2, 1998. After the signs were destroyed, Chancellor reerected each sign, using substantially the same materials as existed in the signs before the fire damage. The Department then issued Notices of Violation for the signs, asserting that the signs had lost their nonconforming status upon destruction, and had become illegal.

3. STATEMENT OF EACH PARTY'S POSITION

   
   

   Department of Transportation - The Department contends that the four signs were destroyed under the definition contained in Rule 14-10.007, Florida Administrative Code, and were not destroyed by vandalism, or other criminal or tortious conduct.

   The Department also contends that the provisions of House Bill 1535 do not authorize the reconstruction of the four signs, because the signs are not appurtenances to real property, and because the reconstruction of the signs is prohibited by applicable Federal law or regulation. The Department's position is that the four signs lost their nonconforming status on July 1 or 2, 1998, and are now illegal.

   
   

   Chancellor - Chancellor contends that the four signs each qualify as a business or other appurtenance to real property for the purposes of House Bill 1535. Chancellor contends that its reerection of the signs is not prohibited by state law or regulation. Chancellor also contends that its reerection of the signs is not prohibited by applicable Federal law or regulation, and therefore that House Bill 1535 specifically authorizes it to

   reerect and maintain the four signs. Chancellor also contends that the four signs were not destroyed by an Act of God, but were destroyed as a result of criminal or tortious conduct and that Chancellor was therefore entitled to reerect the four signs in kind and that the signs are not illegal.

   
   

4. STATEMENT OF ADMITTED FACTS

   
   

   The parties hereby stipulate and agree to the following facts:

   
   

   1. The four signs were located as follows, immediately before the fires:

      
      

      Sign Permit # Location

      BU 716-55 West of Interstate 95, 2.889 miles north of NEB790079 Hull Road

      
      

      BU 714-55 East of Interstate 95, 2.523 miles north of NEB 790079 Hull Road

      
      

      BU 712-55 West of US Highway 1, 0.278 miles north of Wall Avenue

      
      

      BU 709-55 West of US Highway 1, 0.260 miles south of Southland Road

      
      

      each within 660 feet of the first named highway or interstate, and each within Volusia County, Florida. The location of each of the four signs is accurately depicted on the map that was admitted as Petitioner's Exhibit 3 in the hearing on the matters consolidated under DOAH Case Number 99-0659T, a copy of which is submitted herewith.

      
      

   2. The upright supports of each of the four signs were

      wood.

      
      

   3. Chancellor timely filed its Petitions requesting administrative hearings for each of the Notices of Violation that are at issue herein.

      
      

   4. Chancellor's signs are structures.

      
      

   5. In June and July of 1998, an extensive wildfire burned in the area of Volusia County located to the west of the cities of Daytona Beach and Orrnond Beach, and extended into the City of Ommond Beach.

      
      

   6. On July 1 or 2, 1998, all of the upright supports of each of the four signs were substantially burned by wildfire.

   7. On July 1 or 2, 1998, each of the four signs was destroyed by wildfire under the definition of "destroyed" set out in Rule 14-10.007(1)(d), Florida Administrative Code.

      
      

   8. Each of the four signs was lawfully permitted by the Department, at the described location, at the time the upright supports of the four signs were destroyed (under the definition of destruction set out in Rule 14-10.007(1)(d), Florida Administrative Code) by fire.

      
      

   9. Interstate 95 and US Highway 1 were closed to the public before the signs were destroyed (under the definition of destruction set out in Rule 14-10.007(1)(d), Florida Administrative Code).

      
      

   10. Chancellor attempted to access each of the four billboards but could not reach the signs because of road closures by government authorities.

       
       

   11. No lightning struck any of the four signs.

       
       

   12. After the signs were destroyed (under the definition of destruction set out in Rule 1410.007(1)(d), Florida Administrative Code), Chancellor reerected each of the four signs with substantially the same type of materials as had previously composed the structure of each sign.

       
       

   13. The materials used to reerect the signs were not part of the sign structures immediately before the signs were destroyed by wildfire.

       
       

   14. The reerected signs were the same size, shape, and height of the destroyed signs, and were reerected at the same location as the destroyed signs.

       
       

   15. Chancellor does not own the property where any of the four signs are located.

       
       

   16. Under the terms of each agreement with the property owners under which Chancellor has the right to maintain the signs, upon expiration or termination of the agreement, Chancellor may remove all of its sign materials from the property, and may, unless otherwise agreed, no longer maintain the signs.

       
       

   17. Excluding the signs, Chancellor conducts no other business activities on the property upon which the signs are located.

   18. Outdoor advertising is a lawfully recognized business which is regulated under the provisions of Chapter 479, Florida Statutes.

       
       

   19. Chancellor is licensed under Chapter 479, Florida Statutes, to be in the business of outdoor advertising.

       
       

   20. Each of the four billboards was used for leasing advertising space to third parties for advertising purposes.

       
       

   21. Each of the four billboards individually generate income to Chancellor.

       
       

   22. Each of the four signs was classified by the Department as nonconforming at the time the signs were destroyed by wildfire.

       
       

   23. The signs that were destroyed by wildfire were originally erected as follows:

       
       

       The sign that was maintained under DOT sign permit number BU 716-55 was originally erected in 1971.

       
       

       The sign that was maintained under DOT sign permit number BU 714-55 was originally erected in 1971.

       
       

       The sign that was maintained under DOT sign permit number BU 712-55 was originally erected in 1964.

       
       

       The sign that was maintained under DOT sign permit number BU 709-55 was originally erected in 1964.

       
       

   24. The signs that were destroyed by wildfire were classified by the Department as nonconforming at the time the signs were destroyed by wildfire upon the following facts:

The sign maintained under sign Permit Number BU 716-55, was located Seven hundred seventy-six feet (776') from another sign maintained under Department of Transportation sign permit number BU966, and was located on property within an area which was not designated predominately for commercial or industrial use under the future land use map of the comprehensive plan governing the area.

The sign maintained under sign Permit Number BU 714-55, was located Seven hundred twenty three feet (723') from another sign maintained under Department of Transportation sign permit number BIA 11, and Three hundred forty three feet (343') from another sign maintained under Department of Transportation sign permit number B1689, and was located on property within an area which

was not designated predominately for commercial or industrial use under the future land use map of the comprehensive plan governing the area.

The sign maintained under sign Permit Number BU 712-55, was located Four hundred forty three feet (443') from another sign maintained under Department of Transportation sign permit number BU686.

The sign maintained under sign Permit Number BU 709-55, was located Four hundred seventeen feet (417') from another sign maintained under Department of Transportation sign permit number BU7 13.

1. RECORD

   
   

   The parties hereby agree that, in addition to the matters expressed herein, the following items shall be included in the record of the Division of Administrative Hearings in DOAH Case Numbers 99-0904T, 99-0905T, 99-0982T, and 99-0984T:

   
   

   1. The transcript of the hearing in the cases consolidated under DOAH Case No. 990659T, before Judge Suzanne F. Hood, on August 19, 1999, including the Exhibits identified and offered at such hearing.

      
      

   2. Those portions of the transcript of the hearing in the cases consolidated under DOAH Case No. 99-0486T, before Judge Charles C. Adams, on August 16, 1999, which contain the testimony of Mike Kuypers, including the Exhibits identified and offered in connection with Mr. Kuypers' testimony, in the same manner as such testimony was made a part of the record in the cases consolidated under DOAH Case No. 99-0659T, heard by Judge Suzanne

      F. Hood, on August 19, 1999.

      
      

2. ISSUES OF LAW ON WHICH THERE IS AGREEMENT

1. Each of the four signs were destroyed by wildfire under the definition of destroyed set out in Rule 14-10.007(1)(d), Florida Administrative Code.

   
   

2. If the four signs were destroyed as a result of vandalism or other criminal or tortious act, the signs may be reerected in kind.

   
   

3. If the billboards are found to be conforming, the billboards may be reerected.

   
   

4. The four signs were lawfully erected, but at the time of destruction failed to comply with certain provisions of

Chapter 479, Florida Statutes, enacted after erection of the signs, that:

1. Whether any of the four signs were destroyed by vandalism, or other criminal or tortious act.

   
   

2. Whether reerection of the signs is prohibited by Federal law or regulation.

   
   

3. Whether the signs are appurtenances to real property, or constitute a business, within the coverage of House Bill 1535.

   
   

4. Whether Chancellor is entitled to the relief requested. Respectfully submitted this 25th day of August, 1999.

Aileen M. Reilly

Florida Bar No.: 0092452 Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802

(407) 422-2524

Attorney for Chancellor Media Whiteco Outdoor Corporation

Robert M. Burdick Assistant General Counsel Florida Bar. No.: 0146201

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

(850) 414-5362

Docket for Case No: 99-000982

Orders for Case No: 99-000982