STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING COMPANY- LAKELAND,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 07-0512

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RECOMMENDED ORDER

The final hearing in this case was held in Tallahassee, Florida, on April 3, 2007, before Bram D.E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner Lamar Advertising Company-Lakeland (Lamar) rebuilt a billboard that it

owns on the Florida Turnpike in violation of the law that limits the rebuilding of nonconforming signs.

PRELIMINARY STATEMENT

On December 13, 2006, Respondent Department of Transportation (DOT) issued a Notice of Intent to Revoke Sign Permit to Lamar, stating that Lamar's signs permitted by DOT Outdoor Advertising Sign Permits 13882 and 13883 and bearing tag numbers CC087 and CC088, located on the Florida Turnpike in Martin County, were in violation of Florida Administrative Code Rule 14-10.007(2), because "more than 50% of the structural materials in the sign have been replaced within a 24 month period."

Lamar filed a Petition with DOT seeking an administrative hearing to challenge the proposed agency action, and the matter was referred to DOAH. At the final hearing, DOT presented the testimony of Mark Johnson and Lynn Holschuh. DOT's Exhibits 1 and 3 were admitted into evidence. Lamar presented the testimony of David Henry. Lamar's Exhibits 1 through 3R, 6, and 7 were admitted into evidence.

The Transcript of final hearting was filed with DOAH, and the parties subsequently filed Proposed Recommended Orders, which were considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Lamar is the owner of a billboard which displays outdoor advertising and is located on the Florida Turnpike near State Road 91 in Martin County. It is a "back-to-back" billboard with both north-facing and south-facing advertising. The advertising is permitted by DOT Outdoor Advertising Sign Permits 13882 and 13883, and the billboard bears tag numbers CC087 and CC088.

2. The billboard was first built in 1972 and was acquired by Lamar in 1998.

3. The billboard is 549 feet from the nearest sign to the south and 570 feet from the nearest sign to the north.

4. When the sign was built, there were no minimum spacing requirements applicable to signs on the Florida Turnpike, which was classified by DOT as a secondary roadway.

5. Before 1984, the minimum spacing requirement for "federal-aid primary highways" (primary roadways) was 500 feet. In 1984, Subsection 479.07(9), Florida Statutes, was amended to require a minimum spacing between signs on primary roadways of 1,000 feet.

6. Subsection 479.07(9), Florida Statutes (1984), included a provision that not only grandfathered existing signs on primary roadways that were less than 1,000 feet from other signs, but went further to state that such signs, if conforming

   before the spacing requirement was changed, would not be construed thereafter as nonconforming. The significance of this provision is that signs on primary roadways that were more than

   500 feet, but less than 1,000 feet from other signs in 1984, are not subject to Florida Administrative Code Rule 14-10.007(2), which limits the rebuilding of damaged nonconforming signs.

7. In November 1995, the Florida Turnpike was added to the National Highway System. Thereafter, DOT treated the Florida Turnpike as a primary roadway. The reclassification of the Florida Turnpike from a secondary roadway to a primary roadway was not accomplished through a statute or DOT rule.

8. DOT interprets the grandfathering provision in Subsection 479.07(9), Florida Statutes, to apply only to signs that were on primary roadways in 1984 when the 1,000-foot spacing requirement was established. Because the Florida Turnpike was not a primary roadway in 1984, DOT contends that signs on the Florida Turnpike less than 1,000 feet from other signs are nonconforming signs and are subject to the rebuilding limitations in Florida Administrative Code Rule 14-10.007(2).

9. Hurricane Wilma struck Florida in October 2005. Mark Johnson, DOT's outdoor advertising inspector for the area that includes Martin County, testified that in late October or early November 2005, he saw that Lamar's billboard had been seriously damaged. He testified that he saw "everything down" and "poles

   splintered." He took photographs and made notes about his inspection of the damage.

10. Mr. Johnson said he sent the photographs and notes from his October 2005 inspection to DOT headquarters in Tallahassee. Without explanation, they were not offered into evidence at the final hearing.

11. Mr. Johnson testified that on December 7, 2007, he saw that the billboard was rebuilt. He inspected the billboard on that date, and he believes that the six poles that support the billboard are new poles. He saw and photographed old sign materials, including at least one pole, on the ground next to the billboard. It cannot be determined from the photograph whether the pole on the ground is splintered.

12. Lamar denies that the billboard was destroyed and then reconstructed between October and December 2005. It presented the testimony of its real estate/leasing manager, David Henry, who stated that the billboard was not destroyed by the hurricane, and none of its six support poles were replaced.

    Mr. Henry showed that none of the leasing or maintenance records of Lamar indicate that the billboard was rebuilt.

13. Neither party seemed to recognize the significance to this dispute of photographs of the billboard taken in August and November 2005. Petitioner's Exhibit 3I is a September 2, 2005, letter from DOT to Lamar, informing Lamar that the billboard had

    been without advertising for 10 months and was about to be deemed abandoned. One of the photographs attached to the letter and admitted into evidence as Petitioner's Exhibit 3J was taken on August 31, 2005, two months before Mr. Johnson's first inspection. Petitioner's Exhibit 2, which is some general information about Lamar's sign permits that is accessible from DOT's internet website, includes photographs of the billboard taken on November 19, 2005, just after Mr. Johnson's first inspection.

14. To reconcile Mr. Johnson's testimony with the November 19, 2005, photographs, it would be necessary to find

    that the photographs depict the billboard very soon after it was rebuilt. However, there are no discernible changes in the main structural elements of the billboard as they appear in the November 2005 photographs from how they appear in the

    August 2005 photographs. The November photographs do not appear to show a billboard that was just constructed.

15. The old sign materials on the ground that appear in photographs taken by Mr. Johnson on December 7, 2005, would not have been visible to him in October 2005 because of the dense vegetation around the billboard that existed in October 2005. Lamar removed much of that vegetation before Mr. Johnson's December 2005 inspection.1/ The old sign materials could have been there long before October 2005.

16. Lamar removed the advertising sign facings from the billboard when Hurricane Wilma was approaching to avoid damage to the sign facings and billboard and replaced the sign facings before Mr. Johnson's December 2005 inspection.

17. Mr. Johnson appeared to be a credible witness, but he might have been confused by Lamar's temporary removal of the sign facings from the billboard and the clearing of vegetation that exposed old sign materials on the ground next to the billboard. On this record and without Mr. Johnson's October 2005 photographs that purport to show Lamar's billboard to be substantially destroyed, DOT failed to prove that more than

    50 percent of the structural materials in the billboard was

    
    

    replaced.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).

19. DOT has the burden to prove by a preponderance of the evidence the facts necessary to revoke Lamar's permits. See Florida Department of Transportation v. J.W.C. Company, 396

    So. 2d 778 (Fla. 1st DCA 1981)(The burden of proof, apart from statute, is on the party asserting the affirmative of an issue).

20. A nonconforming sign is defined in Subsection 479.01(14), Florida Statutes (2006), as:

    1. 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 regulations, or ordinance due to changed conditions.

       
       

21. In 1984, the Florida Legislature amended Section 479.07, Florida Statutes, to establish 1,000 feet as the minimum spacing requirement for signs on a federal-aid primary highway.

22. Subsection 479.07(9), Florida Statutes (1984), included a grandfathering provision that states:

    (c) Nothing in this subsection shall be construed so as to cause a sign which was conforming on October 1, 1984, to be nonconforming.

    
    

23. DOT argues that Lamar's billboard is nonconforming because the 1984 grandfathering provision only applies to signs on roadways classified as primary roadways in 1984. Lamar argues that DOT's interpretation of the statute is unreasonable because its sign would have been grandfathered in 1984 if the Florida Turnpike had been a primary roadway in 1984, and Lamar's sign should not be treated differently just because DOT reclassified the Florida Turnpike as a primary roadway after 1984.

24. The Florida Legislature did not express its intent in 1984 about whether the grandfathering provision applies or does not apply to signs on roadways which are subsequently classified as primary roadways. DOT's interpretation of the provision is not required by the wording that was used. It is also unclear how DOT could have changed the legal status of signs on the Florida Turnpike from conforming to nonconforming in 1995 without rulemaking. However, there is no need to resolve these statutory interpretation and agency authority issues, the latter of which was not even addressed by the parties, because DOT did not prove that Lamar's billboard violated the rule that limits the rebuilding of nonconforming signs.

25. Florida Administrative Code Rule 14-10.007 provides in relevant part:

    (2) Reasonable repair and maintenance of nonconforming signs, including change of advertising message, is permitted and is not a change which would terminate the nonconforming status. Reasonable repair and maintenance means the work necessary to keep the sign structure in a state of good repair, including the replacement in kind of materials in the sign structure. Where the replacement of materials is involved, such replacement shall not exceed 50% of the structural materials in the sign within any

    24 month period.

    
    

    * * *

    
    

    1. A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. . . .

       1. "Destroyed" means more than 50% of the upright supports of a sign structure are physically damaged such that normal repair practices of the industry would call for, in case of wooden sign structures, replacement of the broken supports.

    
    

26. DOT failed to prove that more than 50 percent of the structural materials in the subject billboard was replaced within 24 months.

RECOMMENDATION

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

RECOMMENDED that the Department of Transportation issue a final order rescinding its Notice of Intent to Revoke Sign Permit regarding Outdoor Advertising Sign Permits 13882 and 13883.

DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

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 8th day of June, 2007.

ENDNOTE

1/ Mr. Johnson said he did not get closer than about 50 feet from the billboard on his October 2005 inspection because of water in the right of way. A hand-written note on Petitioner's Exhibit 2 indicates that the vegetation was removed on November 29, 2005.

COPIES FURNISHED:

Susan Schwartz, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor Post Office Box 10095

Tallahassee, Florida 32302-2095

Stephanie Kopelousos, Int. Secretary Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

James C. Myers, Clerk of Agency Proceedings

Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-000512

Orders for Case No: 07-000512