vs.
Case No. 13-1283
Respondent.
Pursuant to notice, a final hearing was conducted in this case on June 11, 2013, in Gainesville, Florida, before Administrative Law Judge F. Scott Boyd of the Division of Administrative Hearings.
For Respondent: Ronald D. Surrency, Esquire
The issue in this case is whether Respondent‟s Outdoor Advertising Permits should be revoked pursuant to
has not remained substantially the same, has been disassembled and re-erected, or has been destroyed, as set forth in the Amended Notice of Intent to Revoke.
The Florida Department of Transportation (Department) issued a Notice of Intent to Revoke Sign Permit for Violation to Respondent on October 31, 2011. The Department alleged that the outdoor advertising sign permits should be revoked because of violations of Florida Administrative Code Rule 14-10.007(6)(b), governing nonconforming signs. Respondent alleged that there were disputed issues of material fact and requested an administrative hearing. An administrative law judge was not requested from the Division of Administrative Hearings within 15 days of receipt of the petition.
On March 28, 2013, about 17 months after its original Notice of Intent, the Department issued the Respondent an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules.
The matter was referred to the Division of Administrative Hearings on April 12, 2013. The final hearing was conducted on June 11, 2013. The Department called two witnesses at hearing and introduced seven exhibits, P-1 through P-6 and P-8.
Respondent called three witnesses and introduced six exhibits, R-1 through R-5 and R-9. The Transcript was filed on July 1,
2013. The parties filed Proposed Recommended Orders, which were
considered.
The Department of Transportation regulates outdoor advertising signs located in proximity to the State Highway System, the Interstate, and portions of the Federal-aid Primary System.
Green‟s Wrecker Service, begun in 1947, was one of the first wrecker services in Alachua County. Mr. Allen Green was the owner and operator.
There was no precise testimony as to when Mr. Green first erected the advertising sign at issue here, but
Mr. Green‟s daughter, Pamela, vaguely remembered that happening:
Well, I was seven or eight years old. I remember Daddy and Grandpa going down there after they opened up the road. It was woods there and we used to play on our bikes and I remember my Grandmother coming out and sitting beside the road because she was scared we was gonna get onto 301 because it was always woods back there before, and we could ride and we didn‟t have her bothering us, you know. So when the woods got cleared out to 301, then, you know, Granny was sitting out there and daddy and grandpa went down there and done something, put that sign up, I guess.
Based upon Pamela‟s current age and her recollection, it can be roughly calculated that the sign was put up over 40 years ago. It is a small sign, about three feet by six feet, and has the
words “Green‟s Garage” in red letters and a smaller “Pennzoil” logo in yellow, along with a large arrow pointing toward the business. The sign sits at the intersection of US Highway 301 and 165th Avenue, the business being located about a hundred yards down 165th Avenue.
The sign is important to the business because, due to the trees, one cannot see the actual building or cars at the business location from US Highway 301 until one is already at the 165th Avenue intersection, where one can finally see them through the area that has been cleared out for the road.
Mr. Green turned the business over to Pamela before he died, and she has operated the business ever since. She subsequently married Mr. Gary Keen. Mrs. Pamela Green Keen incorporated the business as “Green‟s Garage and Wrecking Service, Inc.”
There was no evidence as to when the subsequent provision of state law or local ordinance with which the sign fails to comply was passed, but the parties stipulated that the sign is nonconforming, so it is clear that the sign was lawful when erected but could not be put up today.
The sign was permitted as a wooden sign with a back-to- back configuration and two supports. That configuration has never changed. The sign was assigned tag numbers BE893 and BE894 by the Department. These tags look like small license
plates that are posted on the sign and must be visible from the main travel-way.
Mr. Tom Simmons is a senior outdoor advertising inspector for Cardno TBE Consultants (Cardno TBE), a contractor for the Department. Cardno TBE manages the outdoor advertising program for the State of Florida. Mr. Simmons has been employed with them for 12 years, and, before that, performed a similar job for four years with the Department. Mr. Simmons oversees 16 counties in northeast Florida, including Alachua County.
Mr. Simmons was very credible in his testimony.
Mr. Simmons testified that he was aware of the sign:
In the due process of traveling from point A to point B on 301, I had seen it before.
Like I stated earlier, after you have been out here a long time like I have, when structures disappear and go away, you pick up on it because it‟s something that you are looking for constantly.
On September 7, 2011, Mr. Simmons took a picture of the sign. It was down on the ground and was not erect.
Mr. Keen testified that shortly before this, he had been having problems with vandals. The windshield of his tow truck had been shattered by a man whose car had been towed to Green‟s Garage. That man was caught and ultimately paid restitution. A vehicle had also been stolen from Green‟s Garage in June, and Mr. Keen or his wife had requested increased sheriff‟s patrols at the business address in August, as
evidenced by records from the Alachua County Sheriff‟s Department. Mr. Keen testified that people often became upset when their cars were towed and that some were vindictive and would resort to vandalism. He said it was an unavoidable consequence of the business, since he towed cars for the Sheriff‟s Department and the Florida Highway Patrol.
Mr. Keen testified that he goes down 165th Avenue to US Highway 301, right past where the sign is located, almost every day. His testimony that the sign was not down for more than a day is accepted. Mr. Keen‟s first action was to look for signs as to who had knocked it down, but he could not find any evidence such as cigarette butts, or cans, or footprints, so he decided it would do no good to call the police.
Mr. Keen re-erected the sign. He did not have to reassemble or add to the materials on the sign in any way, since it was still intact. He just put it back up.
The Department issued its original Notice of Intent to Revoke Sign Permit for Violation, dated October 26, 2011, alleging that the sign had been abandoned. Respondent denied this in its response to the Department and requested an administrative hearing. The Department did not request an administrative law judge within 15 days of Respondent‟s request.
Green‟s Garage and Wrecker Service is substantially affected by the Department‟s intended action to revoke the
permits for the sign. If the permit is lost, the sign must be taken down and no new sign can be erected.
Almost a year later, on October 18, 2012, Mr. Simmons took a picture of the sign which showed that it was back up in its original location. He testified that it appeared to be the same sign, constructed of the same materials as before.
On March 28, 2013, the Department issued Green‟s Garage an Amended Notice of Intent to Revoke Sign Permit for Violation, alleging violations of three different provisions of the rules.
At all times relevant to this proceeding, the sign remained substantially the same as it was on the date it became nonconforming.
Even if it was determined that the sign did not remain substantially the same simply because it was down for a day or two, simply re-erecting the sign when no assembly or construction was required constituted reasonable repair and maintenance of the sign.
The sign was never disassembled throughout the time relevant to this proceeding.
Less than 60 percent of the upright supports of the sign were physically damaged at any time relevant to this proceeding. One pole was not damaged at all; the other had only very minor damage.
The minor damage to one pole was not such that the normal repair practices of the industry would call for that pole‟s replacement.
Respondent never had an intention to abandon or discontinue the sign at any time relevant to this proceeding.
The facts did not show that the sign structure ceased to exist. All the interrelated parts and material -- including the beams, poles, and stringers -- which were constructed for the purpose of supporting or displaying the message remained completely intact and never ceased to exist as an integrated
structure.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).
Petitioner has the authority to regulate outdoor advertising and to issue permits for signs along Interstate and Federal-aid Primary highways pursuant to chapter 479, Florida Statutes.1/
As the party seeking to revoke the sign permit, Petitioner bears the burden to prove its allegations by a preponderance of the evidence. Fla. Dep't of Transp. v. J.W.C.
Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). "Findings of fact
shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute . . . ." § 120.57(1)(j), Fla.
Stat.
An agency is afforded wide discretion in the interpretation of the statute which it administers. Republic Media v. Dep‟t of Transp., 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998); Atlantic Outdoor Adver. v. Dep't of Transp., 518 So. 2d 384, 386 (Fla. 1st DCA 1987), rev. denied, 525 So. 2d 876 (Fla. 1988); Natelson v. Dep't of Ins., 545 So. 2d 31, 32 (Fla. 1st DCA 1984), pet. for rev. denied, 461 So. 2d 115 (Fla. 1985).
Section 479.02(1) provides that it is the duty of Petitioner to administer and enforce the provisions of the agreement between the State of Florida and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and implementing federal regulations.
Section 479.01(17) defines “nonconforming sign” to mean 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. The parties stipulated that the sign in this case is a nonconforming sign.
Respondent‟s substantial interests will be determined by Petitioner‟s action and Respondent has standing in this proceeding.
Section 479.02(7) provides that the Department shall adopt rules necessary for the administration of chapter 479.
The Department has adopted Florida Administrative Code Rule 14-10.007 governing nonconforming signs. Petitioner argues generally that once a sign is down, the intent of the rules is that the sign will be retired and the permit will be revoked. However, no rule was cited which used the term “down” or “downed” or which stated that a permit must be revoked once a sign was down. In taking action to revoke a permit, the language of each provision of the rule allegedly violated must be examined. Food „N Fun, Inc. v. Dep‟t of Transp., 493 So. 2d
25 (Fla. 1st DCA 1986)(statute authorizing revocation of outdoor advertising permits must be strictly construed).
Petitioner first alleges a violation of Florida Administrative Code Rule 14-10.007(1), which provides that a nonconforming sign must “remain substantially the same as it was as of the date it became nonconforming.”
Petitioner cites to no decision of the Department in which subsection (1) of rule 14-10.007 -- as opposed to later
subsections -- has been applied to a downed sign. Given that the State of Florida is bound to “enforce” the agreement with the United States Department of Transportation “in accordance with” federal law, it is appropriate to consider those provisions.
The implementing federal regulation, 23 C.F.R.
§ 750.707, entitled “Nonconforming signs,” provides in subsection (d)(5):
The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate nonconforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights.
Similarly, in the Department‟s own rules, while the requirement that a sign must remain substantially the same as it was as of the date it became nonconforming is set out as a distinct subsection, this is immediately followed by provisions in subsections (2) and (3) relating to modifications in the sign‟s structural configuration, changes in lighting, safety additions, cutting of vegetation, modification of height above ground level, and reasonable repair and maintenance.
In both the federal regulation and the Department rule, it is clear that the requirement that a sign must remain
substantially the same is in the context of intentional modifications to a nonconforming sign. The rules detail which modifications a sign owner may perform and which are prohibited.
Elevating the phrase “must remain substantially the same” into a distinct and all-encompassing violation in its own right divorces it from both its clear meaning under the federal rule and its context in the Department‟s own rule.
The facts here, involving a downed sign, have nothing to do with intentional modification of a sign so that it is no longer substantially the same as it was on the date on which it attained nonconforming status. Rather, as the Amended Notice explicitly states, the factual allegation here is that “the sign has been destroyed and re-erected.”
Consistent with the Department‟s statutory charge to enforce the provisions of the agreement between the State and the United States Department of Transportation in accordance with federal regulations, allegations that a sign has been destroyed and re-erected are properly brought under subsections (4) and (6) of the Department‟s rule (patterned after subsection (d)(6) of the federal regulation), not under
subsections (1) through (3) of the Department‟s rule (patterned after subsection (d)(5) of the federal regulation). The evidence here showed that the sign has remained substantially as it was on the date it became nonconforming, without change. The
fact that the sign was vandalized, or fell due to structural failure, does not bring it under provisions relating to sign modification. It would be inconsistent with implementing federal regulations for the Department to interpret rule 14- 10.007(1) as being applicable to a downed sign.
Further, even if it was appropriate to charge violation of rule 14-10.007(1) for a sign that had only been down for a day or two because it had been knocked over by vandals or fell due to structural failure, simply re-erecting the sign when no assembly or construction was required would constitute reasonable repair and maintenance of the sign.
The Department failed to prove by a preponderance of evidence that the sign did not remain substantially the same as it was as of the date it became nonconforming or that any violation of 14-10.007(1) occurred.
The Department charged in the Amended Notice of Intent to Revoke that violation of rule 14-10.007(4) formed another basis for the revocation action.
Rule 14-10.007(4) provides that a nonconforming sign “may not be disassembled and re-erected” at the same location.
The term “disassembled” is not defined in the rule.
In general, disassemble means “to take apart.” See, e.g., The American Heritage Dictionary of the English Language, 4th ed. (2010), referenced online at www.yourdictionary.com/disassemble;
Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/disassemble; Oxford American English Dictionary, http://oxforddictionaries.com/us/definition/ american_english/disassemble. There was no evidence presented indicating that the sign was in any way “taken apart.” To the contrary, there was credible testimony that the sign was found intact on the ground and replaced just as it was, with all original materials, including the existing upright supports.
This testimony was supported by the Department‟s photograph of the sign as it lay on its side and its later photographs of the sign as it was re-erected.
The Department failed to prove by a preponderance of the evidence that the sign was disassembled or that any violation of rule 14-10.007(4) occurred.
The Department also charged in the Amended Notice of Intent to Revoke that the sign was destroyed within the meaning of rule 14-10.007(6)(a).
Rule 14-10.007(6) provides in relevant part:
A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. “Destroyed,” “abandoned,” and “discontinued” have the following meanings:
„Destroyed‟ means more than 60% of the upright supports of a sign structure are physically damaged such that normal repair practices of the industry would call for, in the case of wooden sign structures,
replacement of the broken supports and, in the case of a metal sign structure, replacement of at least 25% of the length above ground of each broken, bent, or twisted support. A sign will not be considered “destroyed” within the meaning of this section where the destruction is caused by vandalism or other criminal or tortious act.
The unrefuted testimony of Mr. Simmons indicated that on September 7, 2011, the sign was no longer standing upright. Exhibit P-6, a photograph taken by Mr. Simmons on that date, shows the sign down on the ground with the supporting poles angled slightly up into the air. However, the sign appears almost completely intact. Mr. Michael Green, Outdoor Advertising Office Operating Supervisor, who did not actually view the sign itself, testified that based upon his review of the photograph, one of the two supporting poles had an area that “looked kind of jagged.”
On October 18, 2012, Mr. Simmons took another picture of the sign, now back up in the same location. He testified that the sign appeared to still be built of the same materials. This is corroborated by the testimony of Mr. Keen, who testified that he re-erected the sign as soon as he saw that it was down and that it was still completely intact.
The Department argues that the mere fact that the sign was down proves that both upright supports of the sign were damaged, but this does not necessarily follow. It is possible
that a sign could not be damaged at all, but be knocked down by vandals, for example. The facts in this case show that Mr. Keen was able to re-erect the sign without any alteration to the poles or structure. It is therefore clear that there was no substantial damage to the upright supports or other sign structures. The facts show that there was only minor damage to one pole.
In any event, even if both upright support poles had been shown to have been physically damaged, this alone would not be sufficient to show a violation of rule 14-10.007(6)(a). The rule clearly states that the physical damage to the upright supports must be “such that normal repair practices of the industry would call for, in the case of wooden sign structures, replacement of the broken supports.” See Woody Drake Adver.,
Inc. v. Dep‟t of Transp., Case No. 09-5187 (Fla. DOAH Jan. 7, 2010; Fla. DOT April 12, 2010)(more than 60 percent of the poles must be damaged to the point where they cannot be re-used).
The Department offered no testimony or other evidence as to “normal repair practices of the industry” in this case. On the other hand, Mr. Keen testified that he needed to make no repairs, but simply re-erected the sign on the original poles. As the later photographs demonstrate, the poles were completely capable of supporting the weight of the sign as it was re- erected. It cannot be assumed, in the absence of any evidence,
that “normal repair practices” would have required the replacement of these perfectly adequate poles.
The Department failed to prove by a preponderance of the evidence that the sign was destroyed or that any violation of 14-10.007(6)(a) occurred.
In its original Notice of Intent to Revoke Sign Permit for Violation, issued October 31, 2011, the Department alleged that the sign had been abandoned pursuant to rule 14- 10.007(6)(b). The Amended Notice of Intent to Revoke Sign Permit for Violation, issued March 28, 2013, no longer alleged that the sign had been abandoned, but instead alleged the three different grounds for revocation that have been discussed above: the sign was not “substantially the same” under rule 14-10.007(1), the sign had been “disassembled and re-erected” under rule 14- 10.007(4), and the sign was “destroyed” under rule 14- 10.007(6)(a). The Amended Notice did not allege that the sign had been abandoned, nor did it incorporate the earlier charge of
17 months before by reference. An issue arises as to whether the Amended Notice included the earlier allegation.
Anticipating this issue, Mr. Michael Green,2/ Outdoor Advertising Office Operating Supervisor, testified that the Department viewed the charges set forth in the Amended Notice as being in addition to, and not as replacing, the earlier charge. However, that construction would not be at all obvious to a
recipient of the Amended Notice from the face of the Notice itself. A reasonable Respondent might well assume that the Amended Notice was complete in itself.
Even should the Department lean toward the view of its Operations Supervisor, the question of whether or not an Amended Notice should be construed as an addition to, or a replacement of, an earlier Notice is not a conclusion of law over which the Department has substantive jurisdiction. Cf. Dep‟t of Child. &
Fams. v. Morman, 715 So. 2d 1076, 1078 (Fla. 1st DCA 1998)(agency did not have substantive jurisdiction over conclusion of law that allegation was inadequately pled).
The Uniform Rules of Procedure applicable to this proceeding do not address the structure or effects of an amendment. Florida Rule of Civil Procedure 1.190 is similarly silent, but the comments to that rule state in part:
The rule does not spell out the mechanics of accomplishing an amendment. It can be done by a pleading which merely shows the amendment, addition, or change by interlineations on the original pleading, or by a new amended pleading which replaces the original. The latter method is to be preferred except for minor or formal amendments or changes.
While the Rules of Civil Procedure therefore do not “prefer” the practice, they do allow an amendment showing merely the addition or change. That was not done here, however. The Amended Notice not only showed the changes, but also included a complete
recitation of the permit number, location, tag numbers, photographs, introductory notification paragraph, and new point of entry, all without any incorporation of, or reference to, the earlier charge. The Amended Notice stood alone, complete in and of itself. The amendments, detailing three new violations, could not be considered “minor” or “formal.” The Amended Notice, therefore, should be construed as replacing the original Notice.
However, even if the Amended Notice was construed otherwise, so that the charge of abandonment remained, the evidence would fall short. Rule 14-10.007(6) provides in relevant part:
A nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued. “Destroyed,” “abandoned,” and “discontinued” have the following meanings:
* * *
A nonconforming sign is “abandoned” or “discontinued” when a sign structure no longer exists at the permitted location or the sign owner fails to operate and maintain the sign for a period of 12 months or longer. Signs displaying bona fide public interest messages are not “abandoned” or “discontinued” within the meaning of this section. The following conditions shall be considered failure to operate and maintain the sign:
Signs displaying only an “available for lease” or similar message,
Signs displaying advertising for a product or service which is no longer available,
Signs which are blank or do not identify a particular product, service, or facility.
There is no evidence that Respondent ever had an intention to abandon or discontinue the sign. After the sign fell, it was only a matter of days before the sign was re- erected. The advertising content and directions remained on the sign throughout and there was no evidence of anything like a 12- month period during which the sign was not “operated and maintained.” See Hobbs v. Dep‟t of Transp., 831 So. 2d 745, 748 (Fla. 5th DCA 2002)(temporary cessation of nonconforming use does not generally operate to effect abandonment in the absence of the landowner intentionally and voluntarily foregoing further nonconforming use of the property).
The Department asserts that because the sign fell down and was re-erected, the sign structure “no longer existed” for that period of time. Section 479.01(24), Florida Statutes, defines “sign structure” to mean “all the interrelated parts and material, such as beams, poles, and stringers, which are constructed for the purpose of supporting or displaying a message or informative contents.” The evidence shows that the beams, poles, stringers, and other parts never ceased to exist
as an integrated structure and that the sign was re-erected within days.
The thrust of the rule on abandonment or discontinuation is clearly that the sign owner has ceased to display an advertising message, either because the sign structure on which to attach it no longer exists or because the structure is left bare without a message for a period of time, indicating abandonment of the sign. That is not the situation here. To attempt to characterize the temporary downing of a sign due to vandalism or structural failure as “abandonment” turns the plain meaning of that term on its head. See Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012)(clear and unambiguous language must be given its plain and obvious meaning).
If a damaged or downed sign is deemed to be abandoned, this precludes application of the repair and re-erection provisions specifically allowed under the detailed provisions of the “destruction” rule. This is unfair to licensees and would render those portions of the “destruction” rule superfluous. Murray v. Mariner Health, 994 So. 2d 1051, 1061 (Fla. 2008)(provision cannot be construed in such a way that it renders any other provision meaningless or absurd).
Petitioner‟s allegation from October 31, 2011, was replaced by the Amended Notice of Intent to Revoke Sign Permit for Violation filed some 17 months later on March 28, 2013, and
the original allegation was no longer at issue in this hearing. In any event, Petitioner failed to prove by a preponderance of the evidence that the sign was abandoned or that any violation of 14-10.007(6)(b) occurred.
RECOMMENDED that the Florida Department of Transportation enter a final order dismissing the Amended Notice of Intent to Revoke Sign Permit for Violation and allow the outdoor advertising permits to continue.
DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2013.
1/ All references to statutes and rules are to the versions in effect at the time of the alleged violations in September 2011, except as otherwise indicated.
2/ Mr. Green indicated that so far as he knew he was not related to the Greens who owned the sign in this case.
Gerald B. Curington, General Counsel Department of Transportation
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.
