STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case Nos. 99-3345T

) 99-3346T

NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on July 10, 2000, Tallahassee, Florida, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kelly A. Bennett, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Gerald S. Livingston, Esquire

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

STATEMENT OF THE ISSUE

With respect to DOAH Case No. 99-3345T, whether the Respondent must remove the double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25

miles south of North Lake Boulevard, in Palm Beach County, Florida, for the reasons set forth in the Notice of Violation - Illegally Erected Sign, dated March 31, 1999.

With respect to DOAH Case No. 99-3346T, whether the Respondent's permits for a double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida, and bearing permit numbers AZ346-35 and AZ347-35, should be revoked for the reasons set forth in the Notice of Violation - Maintenance of Nonconforming Signs dated March 31, 1999.

PRELIMINARY STATEMENT

In a Notice of Violation - Maintenance of Nonconforming Signs dated March 31, 1999, the Department of Transportation ("Department") notified National Advertising Company ("National Advertising") that it was revoking permit numbers AZ346-35 and AZ347-35, for a double-faced outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida.

The basis for the Department's proposed action was stated as follows: "***The sign has been removed from the location from which it was permitted and may not be re-erected.***" National Advertising timely requested an administrative hearing, and the Department transmitted the matter to the Division of

Administrative Hearings for assignment of an administrative law judge. This case was assigned DOAH Case No. 99-3346T.

In a Notice of Violation - Illegally Erected Sign dated March 31, 1999, the Department notified National Advertising that it must remove an outdoor advertising sign located adjacent to I-95, on the west side of the highway, 1.25 miles south of North Lake Boulevard, in Palm Beach County, Florida. The basis for the Department's proposed action was stated in pertinent part as follows: "NO PERMIT: The above-referenced sign is in violation of Section 479.107(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes." National Advertising timely requested an administrative hearing, and the Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. This case was assigned DOAH Case No. 99-3345T. Pursuant to National Advertising's request, DOAH Case Nos. 99-3345T and 99-3346T were consolidated in an order entered August 25, 1999. 1/

At the hearing, the Department presented the testimony of the following witnesses: John Garner, Ralph J. Paciello, and Fred Harper. Petitioner's Exhibits 1, 2, 4, 5, 11, and 12 were offered and received into evidence. National Advertising presented the testimony of the following witnesses: John Phillip McAllister, Hector Rivera, and Mark Lipman.

Respondent's Exhibits 1 through 5 were offered into evidence; Respondent's Exhibits 1, 4, and 5 were received into evidence. Official recognition was accorded to Chapter 479, Florida Statutes (1999), and Chapter 14-10, Florida Administrative Code.

National Advertising presented the testimony of Robert C. Anderson at the hearing. The Department objected to

Mr. Anderson's testimony being received into evidence because National Advertising did not disclose him as a witness prior to the morning of the hearing, and the Department moved to strike Mr. Anderson's testimony. The Department also objected to two affidavits, marked for identification as Respondent's Exhibits 2 and 3, being received into evidence because they were not disclosed to the Department prior to the morning of hearing and because they constituted hearsay within hearsay. Mr. Anderson was permitted to testify subject to the Department's objection, and ruling was withheld on Respondent's Exhibits 2 and 3. The Department and National Advertising submitted post-hearing memoranda of law with regard to the motion to strike

Mr. Anderson's testimony and to the objections to the affidavits, and an order was entered July 25, 2000, striking Mr. Anderson's testimony and rejecting Respondent's Exhibits 2 and 3.

The transcript of the proceeding was filed with the Division of Administrative Hearings on August 15, 2000, and the

parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999).

2. National Advertising 2/ is the owner of a double- faced outdoor advertising sign located in Palm Beach County, Florida. The sign is located on the west side of Interstate 95,

   1.25 miles south of North Lake Boulevard. At the time the structure was erected, the sign faces were visible to both southbound and northbound traffic of Interstate 95. At the times material to this proceeding, the sign at issue was a non- conforming sign.

3. At the times material to this proceeding, the sign structure consisted of seven wooden poles placed in the ground and secured by concrete. Two metal heads, the sign faces themselves, were attached to the poles, one facing north and one facing south. The structure also included a metal catwalk

   providing access to the sign faces, as well as miscellaneous trim and equipment.

4. At some time prior to the incidents giving rise to these proceedings, a sound wall was erected by the Department along Interstate 95, which blocked visibility of the National Advertising sign face by northbound traffic.

5. In March 1999, National Advertising determined that the existing wooden poles supporting the sign heads were deteriorating and needed to be replaced. In addition, National Advertising decided to raise the height-above-ground-level ("HAGL") of the sign to maintain the same visibility of the sign face by the northbound traffic as that which existed before the sound wall was erected. Consequently, National Advertising contracted with a company to relocate the poles and transfer the existing sign faces and attached equipment to the new poles.

6. Holes were dug approximately five feet from the original wooden poles, and new wooden poles were set in these holes. A crane lifted the sign faces and the attached trim and equipment and supported them while the old wooden poles were cut down slightly above ground level. The crane then moved the sign faces and the attached trim and equipment to the new poles, and the assemblage was bolted to the new wooden poles.

7. The original wooden poles supporting the sign heads were approximately 12-to-13 inches in diameter, and the HAGL of

   the original sign faces was approximately 24 feet. The new wooden poles were approximately 20-to-22 inches in diameter, and the HAGL of the sign faces was raised to approximately 50 feet. The structure of the sign was not altered, and the materials used in the sign faces were not altered.

8. The poles supporting the sign faces can be changed as part of the routine maintenance of an outdoor advertising sign, as long as the new posts are of the same material and configuration; the replacement of deteriorating poles is standard industry practice and is required to maintain the safety of the sign. The sign must, however, stay in the same relative location on the ground as the old sign. It is standard industry practice to place new supporting poles a few feet away from the exact location of the old supporting poles in order to provide a firm foundation for the new poles.

9. The Department uses the term "remove" in its notices of violation as a "general term" meaning "[t]o move [a sign] away from the site, to move it any distance away from where it was installed previously." 3/ Nonetheless, the charges in the Notices of Violation issued in these cases were based on the Department's mistaken conclusion that National Advertising "cut down the entire sign, discarded it and built an entire new sign in its place." 4/

10. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the permitted outdoor advertising sign was removed from its original location and re-erected.

11. Because it has not established with the requisite degree of certainty that the sign was re-erected, the Department cannot sustain its charge that the outdoor advertising sign at issue herein was erected without a permit.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).

13. The Department has the burden of proving by a preponderance of the evidence the allegations included in the Notices of Violation at issue herein. See Section 120.57(1)(j), Florida Statutes (1999); Department of Transportation v. J.W.C., Co, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. A sign is defined in Section 479.01(17), Florida Statutes (1999), as follows:

    "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back,

    side-to-side, stacked, or double-faced display or automatic changeable facing, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way.

    The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department.

15. Section 479.07(1), Florida Statutes (1999), provides: Except as provided in ss. 479.105(1)(e)

    and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department [of Transportation] and paying the annual fee as provided in this section. For purposes of this section, "on any portion of the State Highway system, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

    
    

    A permit is required for each sign face. Section 479.07(3)(a), Florida Statutes (1999).

16. There is no dispute that the double-faced outdoor advertising sign at issue herein is a nonconforming sign. Section 479.01(14), Florida Statutes (1999), provides the following definition:

    "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size,

    spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions.

    
    

17. Section 479.24(1), Florida Statutes (1999), provides in pertinent part:

    . . . A sign will lose its nonconforming status and became illegal at such time as it fails to be permitted or maintained in accordance with all applicable law, rules, ordinances, or regulations other than the provision that makes it nonconforming. . . .

    
    

18. Rule 14-10.007, Florida Administrative Code, provides in pertinent part:

    1. The following shall apply to nonconforming signs:

       1. A nonconforming sign must remain substantially the same as it was as of the date it became nonconforming. Reasonable repair and maintenance, including change of advertising message, is permitted and is not a change which would terminate nonconforming rights. The following are examples of modifications to a nonconforming sign that will result in the loss of nonconforming status:

          1. Modification that changes the type of structure of the sign, such as conversion of a wooden sign structure to a metal structure;

          2. Modification that enlarges the area of the sign facing, however, embellishments may be added to nonconforming signs subject to the limitations regarding size of sign facing and provided they do not exceed 10% of the area of the sign facing prior to the addition of the embellishment;

          3. Modification that raises the HAGL of the sign;

          
          

          * * *

          
          

       2. A nonconforming sign may not be removed and reerected at the same location except as provided in (2), below.[ 5/ ]

          
          

19. The term "removed" has been assigned a specific meaning in Section 479.01(16), Florida Statutes (1999):

    "Remove" means to disassemble, transport from the site, and dispose of sign materials by sale or destruction.

    
    

    "Remove" is not further defined in Rule Chapter 14-10, Florida Administrative Code, which the Department enacted to address the regulation of outdoor advertising signs.

20. On the basis of the findings of fact herein, the Department has not proven by a preponderance of the evidence that the double-faced outdoor advertising sign at issue herein was "removed from the location for which it was permitted." The term "remove" has been assigned a specific definition in

    Section 479.01(16), Florida Statutes (1999), and the Department cannot base a violation on a definition which significantly broadens the statutory definition. Because the Department did not establish by its proof that the outdoor advertising sign at issue herein was "removed," it did not establish by its proof that the sign was re-erected as an unpermitted sign.

21. Even though National Advertising stipulated that it raised the HAGL of the outdoor advertising sign at issue herein by at least 15 feet, the Department did not cite National Advertising for this violation in either of the Notices of Violation which form the basis for this proceeding. It cannot, therefore, use this admitted violation as a basis for revoking the permits for the double-faced outdoor advertising sign. See Sternberg v. Department of Professional Regulation, Board of

Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); and Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996)(The fact that evidence was introduced that "might well support a violation" does not provide a basis for finding a violation when the facts or conduct are not pled in the Administrative Complaint.). Cf. Maddox v. Department of Professional Regulation, 592 So. 2d 717, 720 (Fla. 1st DCA

1991)(The Administrative Complaint contained sufficient allegations of the specific behavior and criteria charged to support violation alleged.). This principle is of particular importance in these cases because, by the terms of the Notice of Violation form used by the Department, a sign permit is not automatically revoked when a person is cited for impermissibly raising a sign's HAGL; rather, the permit is revoked "unless within 30 days after receipt of this notice, the above violation

is corrected and written notice" has been provided to the

Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the Notice of Violation - Illegally Erected Sign in DOAH Case No. 99-3345T and dismissing the Notice of Violation - Maintenance of Nonconforming Signs in DOAH Case No. 99-3346T.

DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2000.

ENDNOTES

1/ Three other cases were consolidated for this proceeding, but those cases were settled and the files of the Division of Administrative Hearings were closed in orders entered July 7, 2000.

2/ National Advertising is now known as Infinity Outdoor Advertising; it was previously known as Outdoor Systems.

3/ Transcript at 21.

4/ Transcript at 63.

5/ The exception stated in Rule 14-10.007(2), Florida Administrative Code, is not applicable in these cases.

COPIES FURNISHED:

Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gerald S. Livingston, Esquire Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151

Orlando, Florida 32802

James C. Myers

Clerk of Agency Proceedings Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Honorable Thomas F. Barry, Secretary Department of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-003346

Orders for Case No: 99-003346