Findings Of Fact l. Clare A. Guenther is the sole owner and president of Western Gate Sign Company located at 8604 North Old Palafox in Pensacola, Florida. Western Gate had acquired Smith Advertising in February of 1977. Mr. Guenther testified that he had been told repeatedly by a former DOT inspector that he did not need a permit tag on the sign in question because it had been "grandfathered in". However, this former DOT employee was not present at the hearing for testimony. Mr. Guenther acknowledged that Western Gate Sign Company had received a letter from DOT dated December 18, 1978, notifying all outdoor advertising licensees and permittees that permits will be required for all signs within city or town limits, and allowing a 60 day period within which permits could be applied for. At this time, however, Mr. Guenther was under a doctor's care, and he relied totally on the former DOT inspector in most matters relacing to road signs. Nevertheless, no application for a sign permit was filed by Western Gate for the subject sign during this 60 day time period. Mr. Guenther testified that the representatives of Smith Advertising who were familiar with the erection of the sign in question passed away in October of 1982, and Mr. Guenther admitted that he was not present when the sign, was erected. He had no documents other than a lease dated September 9, 1971 to show when the subject sign was actually erected. Sometime during the years 1977 or 1978, Western Gate changed the face of the subject sign by replacing the boards. This amounted to a replacement of more than 25 percent of the value of the entire sign. Emory F. Kelley, District Administrator, Outdoor Advertising, Department of Transportation, is responsible for controlling outdoor advertising in the 16 counties of the third district, including Escambia, on federal aid and primary roads and interstate highways. He makes decisions on applications for outdoor advertising permits based on his review and the recommendation of the inspector who viewed the site. The sign in question is within the city limits of the City of Pensacola, and is located approximately 700 feet north of State Road 289-A on Interstate Highway 110, facing south. It is a DOT policy to consider applications for sign permits on a first come, first serve basis. When the permit application was received from Western Gate Sign Company, it was transmitted to Sandi Lee, a local DOT inspector, to be checked out. Ms. Lee's inspection showed that there were existing permitted signs less than 1,000 feet from the site of the .sign in question, on the same side of the road, facing the same direction. Using the DOT computer inventory, the permitted sign south of the sign in question is one with permit number 8737-10 at mile 1.55. The permitted sign north of the sign in question is one with permit number AR559-10 at mile 1.75. The milepost locations indicated on the computer inventory begin at Maxwell Street on 1-110 and move in a northerly direction. The distance between Maxwell Street and State Road 289-A is approximately 1.5 miles, which would place the southerly permitted sign, number 8737-10, .05 miles or approximately 264 feet north of SR 289-A, and place the northerly permitted sign .25 miles or approximately 1320 feet north of SR 289-A. Permit number 8737-10 was approved an May 7, 1976, and permit number AE559-10 was approved on March 4, 1982. The application for the sign in question, submitted by Western Gate Sign Company, was dated June 2, 1982, and was received in the DOT district office on June 3, 1982. Sandi Lee, Outdoor Advertising Inspector, Department of Transportation, performs field inspections for permit applications on federal aid, primary and interstate highways. She conducted the field inspection for the subject permit application. Using a roll-a-tape device, she measured the discance of the sign in question as approxiately 350 feet from a previously permitted board. The subject sign is on the same side of the road as the permitted sign, facing in the same direction, located inside the corporate limits of Pensacola, on a section of interstate highway open to travel by the public. It is a six foot by twelve foot sign which is visible from the interstate highway and is located 20 to 25 feet from the right-of-way line.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Western Gate Sign Company for an outdoor advertising permit for a sign on Interstate Highway 110, seven hundred feet north of State Road 289-A, facing south, be denied. THIS RECOMMENDED ORDER entered this 2nd day of March, 1983 Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: Clare A. Guenther, President Western Gate Sign Company 8604 North Old Palafox Pensacola, Florida Vernon L. Whittier, Jr., Esquire Department of Tansportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul A. Pappas. Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Petitioner owns the sign located 186 feet West of Mulberry Point, Citrus County, Florida. Petitioner also owns the property on which the sign is located. The sign advertises a community development which Mr. Infantino is developing. The sign is important to his business. The sign is located on a parcel of real estate adjacent to State Road 44. State Road 44 is a Federal Aid Primary Highway and was a Federal Aid Primary Highway prior to sign's erection. The sign was originally erected in 1980 or 1981. Mr. Infantino had the sign erected by a professional sign company. At that time, the area in which the sign is located was zoned commercial by the county. 1/ No state sign permit was obtained by either Mr. Infantino or the company that erected the sign. Mr. Infantino was not aware of the state sign permit requirement and, therefore, the sign has never been permitted in the nine or ten years of its existence. In 1986, the area in which the sign is located was rezoned by the county. The new designation given by the county to the area was Coastal Lakes - 2, an environmentally sensitive area with a primarily residential use. However, the County allowed the sign to remain as a non-conforming structure. The evidence failed to demonstrate whether there were at least three (3) businesses within 1600 feet of Petitioner's development. Additionally, the evidence did not demonstrate that the surrounding area was primarily commercial in its use or was customarily used in a commercial character. 2/ In 1989, after nine or ten years of the sign's existence, an unnamed DOT inspector discovered the sign involved in this case. The late discovery was never adequately explained at the hearing. However, upon its discovery, the sign was determined not to have a state permit. Mr. Infantino was cited for the violation in a Notice to Show Cause issued by the Department. In response to that Notice, Petitioner filed a permit application with Respondent. The application was reviewed and denied primarily because the area in which the sign was located was not currently zoned commercial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's application for a permit to erect and maintain a sign on State Road 44, on real estate located at Section 8, Township 19, Range 21, Parcel 12200, in Citrus County, Florida, be denied. DONE and ENTERED this 3rd day of February, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1990.
The Issue Whether Petitioner, KOA Campground, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of-way without a valid sign permit. Whether Petitioner, KOA Campground, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Petitioner, KOA Campground, violated Section 479.04(1), Florida Statutes, by operating outside the city limits without a state license. Whether Petitioner, KOA Campground, is entitled to the issuance of a sign permit for the east-facing sign located 678 feet West of Seven Dwarfs Lane on US Highway 192, in Osceola County, Florida. Whether Respondent, Peloso, violated Section 479.07(1), Florida Statutes, by placing a sign facing a state road right-of- way without a valid sign permit. Whether Respondent, Peloso, violated Section 479.07(9)(a)2, Florida Statutes, by placing a sign in violation of the DOT spacing rule. Whether Respondent, Peloso, violated Section 479.07(5)(a), Florida Statutes, by failure to display a current valid sign permit tag. Whether Respondent, Peloso's state permit number AG636-10 become invalid and subject to revocation by the DOT.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. Petitioner, KOA Campground, as Lessor, and Respondent, Arthur S. Peloso, as Lessee, entered into a Lease for space to erect a sign structure to be located approximately 0.67 mile east of State Road 535 (north side) adjacent to U.S. 192 in Osceola County on March 1, 1982. The real property described in said Lease covered an area approximately 100 feet in width adjoining the Peloso property to the east. On the property encompassed in said Lease, dated March 1, 1982, KOA erected some time in 1982, at its expense, an existing sign on its property which was constructed to face east. The message on the sign related to the KOA Campground which is on the same site. As such, it is an on-premises sign not requiring a DOT sign permit so long as the message on the sign relates to the business being conducted on the property. On the land adjoining the property described in said Lease, Peloso erected a sign, at his own expense, on his property in 1982 which was constructed to face west. At that time in 1982, Peloso applied for and received two outdoor advertising permits nos. AG636-10 and AG637-10, from the DOT. AG636-10 was issued for the west facing sign and AG637-10 was issued for the east facing sign. AG636-10 was promptly posted on the west facing sign which presently advertises Peloso's restaurant in Kissimmee, Florida. Said permit has remained posted on that sign continuously to the present time. AG637-10 was lost by Peloso. Thereafter, a request was filed by Peloso to replace permit AG636-10 rather than AG637-10. As a result, permit AX346-35 was issued to replace AG636- 10, and no replacement for AG637-10 has been issued. AX346-35 has now been posted along with AG636-10 on the west-facing sign owned by Peloso. Peloso has continuously paid the renewal fees relating to both permits issued. Pursuant to paragraph 6 and 7 of the Lease, dated March 1, 1982, the 100 foot strip of land owned by KOA was leased to Peloso and states: "6. Said premises are hereby leased for use by the lessee as a site for billboard advertising sign only, and for no other use or purposes unless the lessor gives his written consent thereto, and shall be operated at all times in a lawful manner. The lessee shall carry all necessary insurance, procure all necessary permits and licenses, and build and construct all signs in strict conformity with applicable Florida Statutes; and the lessor shall not be liable or held responsible therefor in any manner whatsoever. The parties agree that the lessee shall position his sign so that it faced in the general direction of west and the lessee shall provide space for the lessor to place a sign in the vicinity thereof also, so that it faces in the general direction of east." The Lease does not set forth a specific purpose on its face, but was requested in order to accommodate setback requirements under local law, and possibly to allow the sign to be erected to overhang the KOA boundary line. Said Lease has not been terminated and is still in full force and effect. On October 14, 1988, Peloso filed applications for two outdoor advertising sign permits "to rebuild and improve existing sign structure", which were treated as an amendment to the existing permits and tentatively approved by DOT. KOA filed an application for an outdoor advertising sign permit for the east-facing sign on its property sometime in the Fall of 1989. Peloso is the holder of the two existing permits (AG636-10 and AX346- 35), and is entitled to maintain permits for both an east-facing and a west- facing sign in the vicinity of the present Peloso restaurant sign (AG636-10). KOA has whited-out the copy on its sign and presently is not advertising any business (on-site or off-site) on the sign. Peloso has ceased construction on his new sign structure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated June 30, 1989, directed to KOA Campground be dismissed, so long as its sign qualifies for exempt status under the provision of Section 479.16(1), Florida Statutes. The Alleged Violations of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, dated October 20, 1989, directed to Arthur S. Peloso be dismissed, upon compliance with Section 479.07(5)(b), Florida Statutes, (lost tag). Thereafter, DOT should process the Amended Application of Peloso, dated October 14, 1988, relating to the construction of a new sign structure and ensure compliance with all applicable statutes and rules. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Buildi.ng 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by Petitoner, KDA Campground. Paragraph 1- Accepted in substance except the statement the original permit was issued "for the existing sign on KOA property...", which is rejected as against the greater weight of the evidence. Paragraph 2- The first sentence is rejected as against the greater weight of the evidence. The second sentence is Accepted. Paragraph 3- Accepted in substance. Paragraph 4- Rejected. Paragraph 5- Accepted in substance. Proposed Findings of Fact submitted by Respondent, Arthur S. Peloso. Paragraphs 1-9. Accepted in substance. The Department of Transportation did not file proposed findings of fact. COPIES FURNISHED: William H. Muntzing, Esquire 1102 Oak Street Post Office Box 421966 Kissimmee, Florida 34742 Philip W. Watson, Esquire Akerman, Senterfitt & Eidson Firstate Tower, 17th Floor Post Office Box 231 Orlando, Florida 32302 Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact By notice of alleged violation dated April 18, 1979, the Department of Transportation (hereafter "Department") charged that the Respondent, Ron Sorg installed a sign on U.S. 301, 7.19 miles south of I-4 in violation of Rules 14- 10.04 and 14-10.05, Florida Administrative Code. The sign in question is an outdoor advertising, sign, located on private property in an area zoned agriculture and has been in its present location for at least ten years. The sign has never been permitted and the road on which it borders is presently classified as a federal-aid primary road. Until 1976, the road on which the sign borders was a federal-aid secondary road. Following the notice of violation, the Respondent applied for a sign permit on October 12, 1979. Since none of the above facts were in dispute, the only issue remaining is the law which is to be applied to this particular sign. Both parties agreed to submit the legal issue to the Hearing Officer for determination.
Findings Of Fact Golden Lariat Western Shop was issued permit number AJ 666-12 authorizing a sign on the north side of 1-10, .2 mile west of C-69A in Jackson County, Florida. This location is in an unzoned area, and the permit was granted because of the proximity of this site to a welding business supposedly operating in a wooden building located directly behind the sign. Prior to field approval of the location, a Department sign inspector requested and received copies of receipts for work done by the welding shop, and the sales tax registration for the business. Field approval was granted on July 11, 1983, and the permit application was approved on July 14, 1983. On November 11, 1983, a routine field inspection was conducted by the Department, and there was no commercial activity being conducted in the area where the building and the sign are located. Pictures of the site show a wooden building approximately 10 feet by 12 feet, without any windows, sitting on concrete blocks adjacent to the sign. This area is rural in nature with an agricultural setting. There are fences between the interstate highway and the building, and there is a pony shown in the photographs next to the fence. There is no road in this area, no evidence of any welding activity such as scraps of iron, etc., and the building is not open for business. Additional inspection visits were made by the Department on various dates, end at different times during the day, between December 6, 1983, and May 2, 1984. There was no commercial activity in the area during any of these visits. There was a sign on the building marked "Mike's Welding Shop", but on March 15, 1984, this sign had been replaced by a sign advertising Beach Sign Company, and displaying the telephone number at the residence of one of the owners of the Golden Lariat Western Shop. When this telephone number was called by the Department's Inspector on March 26, 27, 28, 29 and April 23, 1984, no one answered. Neither of these signs gave any directions to show how to get to the place of business. The wooden building is located in an area which is cut off by Interstate 10. In order to reach this building, according to the Department's Inspector, a customer would have to ". . . come off the C-69(A) onto the old C-69(A) and. . . go to the end of that where it dead-ends, turn right down a dirt lane, go past Mr. Branch's house into a field to gain access to the building." Part of C-69(A) overpasses I-10 in this area. On May 2, 1984, the Inspector observed a sign indicating "closed at job site - back 10 a.m." The inspector waited until 12 noon and no one showed up. He also noted it had rained the night before, but there were no tireprints or foot steps in the area where the building is located. The Department requires that an unzoned commercial or industrial area be an active site. The business activity must be operational, and observable, and readily recognized as an active business. As a result of the inspections made by the Department's representatives, a letter was sent advising the Respondent that the sign permit was being revoked because of lack of commercial activity in the area. The owner of Mike's Welding Shop, who is also one-half owner of the Golden Lariat Western Shop, entered into a five-year lease on October 27, 1982, for an area large enough for a one-face sign at the location in question, at an annual rental of $350. This lease does not cover the area where the welding shop is located, but there was a verbal understanding that the building housing the welding shop could be placed there without additional rental. The wooden building was constructed in three days, and placed on top of concrete blocks, but it is not fastened to the blocks and can be moved elsewhere. It has two electrical outlets, but no running water or sewage connection. The welding shop owner is not a certified welder, and he did not know the voltage or the amperage of the welding machine used in this business. He does not go to the shop every day and could not remember if he was present in the shop on the dates when the Department's Inspector found it closed. He contends that others use the shop and the equipment, and he sends them a bill. He also claims that the welder was broken from November 1 to the latter part of December, 1983. He admits that no sales tax return has been filed since December of 1983. This building was leased to Beach Sign Company in March, 1984, for rental of $10 per month. Prior to moving this business to Grand Ridge the owner conducted it out of his home in Panama City. Basically, this business consists of renting or selling portable signs on trailers. These signs are manufactured by a sign company, and rented or sold through a catalog-type of brochure with pictures. The customer orders from the manufacturers. The owner of this sign business contends that he also rebuilds signs, but as yet he has not actually finished rebuilding any sign. He claims to have applied for a sales tax number for this business, but he has not received it yet.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that sign permit number AJ 666-12 held by the Respondent, Golden Lariat Western Shop, authorizing a sign on the north side of I-10, .2 mile west of C-69A, facing east, in Jackson County, Florida, be revoked, and the subject sign removed, on a date five years after the date of the Final Order in this case. THIS RECOMMENDED ORDER entered this 20 day of July, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of July, 1984. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire P. O. Box 793 Marianna, Florida 32446 =================================================================
The Issue Whether the Department of Transportation (hereinafter "Petitioner") properly issued Notices of Violation to Respondent as alleged in Notice Numbers 09 BU720, 09 BU721, 09 BU723, 09 BU724, 09 BU726, and 09 BQ032 for outdoor advertising billboard structures located adjacent to US 1 and I-95 in Brevard County, Florida. Specifically at issue is whether Respondent's outdoor advertising signs: (1) were removed from the locations for which they were permitted and re-erected at the same locations; (2) are nonconforming and cannot be relocated; were destroyed by an act of God; and (4) are destroyed nonconforming signs which cannot be re-erected (the signs have been re-erected), all in violation of Rule 14-10.007, Florida Administrative Code.
Findings Of Fact Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation ("Respondent"), owns and maintains four off- premise outdoor advertising signs located along Interstate 95 in Brevard County, Florida. Respondent also owns and maintains two off-premise outdoor advertising signs located along U.S. Highway 1 in Brevard County, Florida. These six off-premise outdoor advertising signs are generally hereinafter referred to as the "signs." Outdoor advertising is a lawfully recognized business which is regulated under the provisions of Chapter 479, Florida Statutes, by Petitioner. Respondent is licensed by Petitioner in the business of outdoor advertising. The Division of Forestry of the Department of Agriculture and Consumer Services ("DOF") is governed by Chapter 590, Florida Statutes, and is responsible for fire protection, fire control, and land management. DOF is charged with the protection of life, property, and natural resources. Petitioner classified the signs as "non-conforming" outdoor advertising signs at all times relevant to this proceeding. The six signs were maintained under the following Department of Transportation ("Department") sign permit tag numbers and were located as follows at all times relevant to this proceeding, each within 660 feet of the first named highway or interstate and each within Brevard County, Florida. Sign Permit # Location BQ 032-55 West of Interstate 95, 3.725 miles north of NEB700136/060 State Road 46 BU 726-55 West of Interstate 95, 1.572 miles north of NEB700138/066 Aurantia Road BU 723-55 West of U.S. Highway 1, 0.324 miles north of County Road 5A BU 724-55 West of U.S. Highway 1, 0.339 miles north of County Road 5A BU 721-55 West of Interstate 95, 3.601 miles north of NEB700136/060 State Road 46 BU 720-55 West of Interstate 95, 3.667 miles north of NEB700136/060 State Road Each of the signs was lawfully permitted by Petitioner at the described location during the relevant time period. Each of the six signs was used for leasing advertising space to third parties and each individually generated income to Respondent. The signs located along Interstate 95 were erected in 1971 and the signs located along U.S. Highway 1 were erected in 1964. The signs located along Interstate 95 were located less than 1,000 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department. Each of the signs located along U.S. Highway 1 was located less than 500 feet from another outdoor advertising sign on the same side of the highway maintained under a sign permit granted by the Department. None of the signs were located in an area designated for commercial or industrial use. Interstate 95 is an interstate highway and U.S. Highway 1 is a federal primary highway. The upright supports of each of the six signs were wood, and such signs are structures. In June and July of 1998, an extensive wildfire burned in the area of Brevard County located generally north of State Road 46. During the evening of June 26, 1998, a thunderstorm passed through the area of Brevard County west of the signs. The weather conditions at that time were extremely dry. An event constituting an act of God is any sudden manifestation of the forces of nature without human intervention. The best evidence for the cause of the fire is that lightning during the storm started two wildfires in remote areas west of the signs. The fires were identified by DOF as the Freshwater and Break 5 (or Break 10) fires. Each fire initially spread west. DOF began efforts to combat the Freshwater Fire and the Break 5 fire on June 27, 1998. However, the fires expanded as a result of weather conditions. Because of the hot, dry weather conditions and erratic winds, and despite the continuing efforts of DOF, the fires continued to expand and burned together on June 29, 1998. The combined fires were referred to as the Farmington Fire. On the evening of June 30, 1998, rapid winds from the west caused the Farmington Fire to expand and travel to the east and northeast. As the fire continued to rapidly expand on July 1, 1998, DOF determined that it was unsafe to locate firefighting equipment in the path of the fire. On or about July 1, 1998, the Farmington Fire burned through the area where the signs that Respondent maintained under sign numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55 were located. On or about July 2, 1998, the Farmington Fire burned through the area where the sign that Respondent maintained under sign permit number BU 726-55 was located. On or about July 1, 1998, the Farmington Fire substantially burned all of the upright supports of each of the signs that Respondent maintained under sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, and BU 724-55. On or about July 2, 1998, the Farmington Fire substantially burned all of the upright supports of the sign that Respondent maintained under sign permit number BU 726-55. None of the six signs was struck by lightning prior to their destruction. The Farmington Fire spread through the areas where the six signs were located as a result of drought conditions and weather factors. Interstate 95 and U.S. Highway 1 were closed to the public before the signs were destroyed. Respondents attempted to access each of the six signs but could not reach the signs because of road closures by governmental authorities. A burnout is a way of fighting a fire wherein fire is deliberately set and used in a countering measure to burn the fuel in front of a wildfire. The purpose of a burnout is to establish control over a wildfire by eliminating fuel in the existing fire's path. If a burnout is unsuccessful, more strength is added to the wildfire because the wildfire has gained momentum. It is possible for a prescribed burn to become a wildfire. DOF set a fire to "burn out" an area of land involved in the Farmington Farm on the evening of June 28, 1998. This "burnout" fire was set by Ranger Weis in his capacity as an employee of DOF. The fire continued to travel after the burnouts were conducted. The burnout did not contribute to the spread of the Farmington Fire, but temporarily helped to impede the it. The Farmington Fire spread over 5,000 to 6,000 acres. Approximately 200 firefighters were involved in fighting the Farmington Fire. Bulldozers, fire engines, helicopters, retardant, and tankers were used in the firefighting efforts. Many homes, businesses, and other property in the area of the Farmington Fire were saved from fire damage. Some were not saved. The only fire in the area of the Farmington Fire that was set by someone other than Ranger Weis did not contribute to the spread of the Farmington Fire or burn the signs. The Farmington Fire was contained on July 2, 1998. If the same measures that had been used to protect other property from damage had been used on the billboards, the billboards could possibly have been saved from fire damage. The measures that were taken on homes, businesses, and other structures to protect them from fire damage were not used around the subject signs. The steps taken by DOF and firefighting crews to save homes and businesses included creating defensible space around the structures by clearing vegetation and spraying the structures with water. House Bill 1535, which contains amendments to Chapter 590, Florida Statutes, allows for nonconforming buildings, houses, businesses, or other appurtenances to property destroyed by the wildfires of June and July 1998 to be re-erected in kind. House Bill 1535 (Section 24 to revised Chapter 590, Florida Statutes) is applicable to Respondent's signs because each sign constitutes a business which, on its own, would require a state license under Chapter 479, Florida Statutes, and which individually generates advertising revenue. Nonconforming signs destroyed by vandalism or tortious acts may be re-erected in kind. The term "tortious acts" is not defined in Chapter 479, Florida Statutes, or in Chapter 14-10, Florida Administrative Code. After the signs were destroyed, Respondent re-erected each of the six signs with substantially the same type of materials as had previously composed the structure of each sign, and at the same location as the destroyed signs. The materials used to re-erect the signs were not part of the sign structures immediately before the signs were destroyed by the Farmington Fire. Respondent's signs were re- erected in kind. Respondent does not own the property where any of the six signs are located. Under the terms of each agreement with the property owners under which Respondent has the right to maintain the signs, upon expiration or termination of the agreement, Respondent may remove all of its sign materials from the property, and may, unless otherwise agreed, no longer maintain the signs. Excluding the signs, Respondent conducts no other business activities on the property upon which the signs are located. Petitioner's witness, Ronald Weis, a Senior Forest Ranger with the Division of Forestry, had personal knowledge of the wildfires that occurred in Brevard County during June and July 1998 and participated in the investigation, management, and fighting of the wildfires in Brevard County in the areas where the subject signs are located. Respondent's witness, Dennis R. Dewar, based upon his years of experience and education in various fire fighting and teaching capacities, is qualified as an expert to testify in the areas of fire fighting training, fire fighting operations, the spread of fires, and the cause and origin of fires. The opinion testimony of Mr. Dewar, concerning the cause of the damage to the signs and the cause, origin, and spread of the Farmington Fire, was not persuasive. DOF regulates prescribed burns. However, it cannot mandate prescribed burns on private property. A prescribed burn is the controlled application of fire to property. One of the primary purposes of prescribed burning is to reduce the fuel load and, therefore, reduce fire hazard. The failure to prescribe burn increases the possibility of a wildfire. It is foreseeable that if prescribed burns are not done in an area over time the possibility of the spread of wildfire is foreseeable. A wildfire is any fire over which DOF has no control. Typically, a fire started by lightning can be controlled and contained. When a lightning strike starts a fire, the spread of that fire is influenced by human intervention. Property usually can be protected from damage as a result of a fire started by lightning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order that the outdoor advertising signs maintained by Whiteco Metrocom, now known as Chancellor Media Whiteco Outdoor Corporation, under outdoor advertising sign permit numbers BQ 032-55, BU 720-55, BU 721-55, BU 723-55, BU 724-55, and BU 726-55 are illegal and must be removed pursuant to law. DONE AND ENTERED this 28th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of September, 1999. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Aileen M. Reilly, Esquire Gerald S. Livingston, Esquire Livingston & Reilly, P.A. 612 East Colonial Drive, Suite 350 Post Office Box 2151 Orlando, Florida 32802 Thomas F. Barry, Secretary ATTN: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, should be approved.
Findings Of Fact Preliminary matters Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed. Matters at issue POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements. POZ's estoppel theory To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard. Following Ms. Kinchen's advice as to location, Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr. Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north facing sign) and BB-458-35 (for the south facing sign) were issued. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief. POZ's theory of inconsistency Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action to secure the sign's removal. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.
The Issue The issue to be determined is whether Respondent violated Subsections 489.533(1)(m)2., 489.533(1)(r), or 489.533(1)(s), Florida Statutes (2008), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a certified specialty contractor, having been issued license number ES 12000484. Respondent's address of record is 2210 North Monroe Street, Tallahassee, Florida 32303. Respondent is the qualifier for Signs Unlimited. Mr. Patel and his family are the proprietors of a business in Tallahassee named the Beer Stop. On or about November 13, 2008, Mr. Patel contacted Signs Unlimited regarding the manufacture and installation of signs for Beer Stop. He wanted a sign for over the door of the business, and a sign to be added to an already existing sign for the shopping plaza, near the road in front of the plaza. A sign over the door of the building simply required a new pan face. As such, it required no permit for installation. However, the plaza where Beer Stop is located had an already existing sign near the street with individual businesses listed on it. Each individual sign for the businesses advertised has a "cabinet" included on the structure, which holds the electrical connections necessary to make the sign light up and thus make the advertising more visible to passersby. Any sign with these cabinets that is over 100 square feet requires a permit and engineered drawings. Mr. Patel received from Edward Johnston, a Signs Unlimited employee and supervisor, an estimate for a structure permit, engineered windload drawings, and three hours use of a bucket truck. The estimate identified a price of $1,366.33 and did not include the cost of the signs themselves. Mr. Patel also received an estimate for similar permitting and engineering services from at least one other company. On November 19, 2008, Mr. Patel entered into a contract with Signs Unlimited for the signs he wanted. The contract listed the following items: 1) one pan face per sq. ft. (1:3' x 12') d/s, for $1,086.15; 2) two acrylic 1/8' per s. ft. at $688 each; and 3) installation, at 1 1/2 hours use of a bucket truck. With tax, the total was $2,800. Mr. Patel paid a deposit of $1,800 on November 21, 2008. The invoice dated November 19, 2008, makes no mention of a permit or engineered drawings, and the amount of installation time identified is half of that in the original estimate. Mr. Johnston asked Mr. Patel about the permit and engineering for the road-side sign, and was directed to go forward with the fabrication of the three signs and installation of the building sign only. Mr. Patel testified that he assumed the contract price on the November 19, 2008, invoice included Respondent's costs to obtain all necessary permits and everything necessary for completion of the contract. Mr. Patel's testimony to this effect is not credited. Signs Unlimited makes and installs signs. However, it is not unusual for the company to make the signs and provide them to a customer who either has them installed by someone else or installs the signs itself, or for Signs Unlimited to install signs made by other companies. In this case, it would have been feasible for the pan faces to be installed in an existing cabinet on the sign if, for example, they replaced the advertising of a prior tenant. To do so would require no permit. In this case, Signs Unlimited made and installed the pan face above the door of the business. It was not required to obtain a permit for doing so. It also fabricated the pan faces for the sign near the street and delivered them to the Beer Stop location. Signs Unlimited did not install these signs. On December 15, 2008, Mr. Patel paid the remaining balance on the invoice dated November 19, 2008. Nonetheless, a new cabinet (of lesser quality than those already included on the existing structure) was added to the sign by the road. No permit was obtained for this sign. On or about December 15, 2008, the City of Tallahassee received a complaint about the sign near the road from a competitor who had bid on the project. Anthony Maccarone, an inspector for the city, confirmed that no permit had been obtained. He also took pictures of the sign and spoke with Mr. Patel, who showed him the invoice from Signs Unlimited. Mr. Maccarone called Signs Unlimited about the sign, and issued a Stop Work Order to the owner to be posted at the site. Edward Johnston told Mr. Maccarone that Signs Unlimited installed the sign above the door but did not install the other signs. At Mr. Maccarone's request, he removed the cabinet and pan faces from the sign by the road. Both the cabinet and the pan faces were left on the sidewalk by the door of the Beer Stop. Mr. Johnston testified that he tried to contact Mr. Patel to see if he wanted the job properly engineered and permitted, and to have the signs reinstalled. However, he received no response. Mr. Patel, on the other hand, testified that he felt Signs Unlimited should have refunded him some money because not all three signs were installed. However, he admitted that he never made such a request of Signs Unlimited. He filed a complaint with DBPR instead and was waiting for a "judgment" from DBPR.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Electrical Contractors' Licensing Board enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 21st day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2010. COPIES FURNISHED: LeChea C. Parson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Carrie D. Johnston Signs Unlimited 2210 North Monroe Street Tallahassee, Florida 32303 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juanita Chastain, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.
Findings Of Fact Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department uniformly interprets Rule 14- 10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange. The area where I-95 crosses or intersects with Midway Road is called an interchange. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue. All interchanges are not constructed alike. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 34399-0450 Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue At issue is whether the permits Respondent holds to maintain two outdoor advertising signs should be cancelled, and whether the signs Respondent repaired and reerected following the destruction of the original signs by an Act of God (a hurricane) should be removed, as alleged in the Notices of Violation.
Findings Of Fact The parties Petitioner, Department of Transportation (Department), is a state agency charged with, inter alia, the duty and responsibility to regulate outdoor advertising signs under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. Respondent, National Advertising Company, is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. Pertinent to this case, Respondent is the owner and operator of two nonconforming outdoor advertising sign structures located adjacent to the Florida Turnpike (SR 91) in Palm Beach County, Florida. The first structure is a double-faced sign permitted by the Department under Permit Numbers AZ 363 and AE 401 and located .83 miles south of mile post 85, on the west side of the turnpike. The second structure is a single-faced sign permitted by the Department under Permit Number BT 386 and located .7 miles south of mile post 85, on the west side of the turnpike. In October 1999, both the single-faced and double-faced signs were damaged by Hurricane Irene. That damage included the severance of all upright supports (wood poles) for the sign structure, as well as other damage discussed infra. Respondent repaired and reerected the signs. Here, the Department contends the nonconforming signs were "destroyed," as that term is defined by Rule 14- 10.007(1)(d), Florida Administrative Code, and may not be replaced. Respondent disagrees that the signs were "destroyed" and is, therefore, of the opinion that they were properly reestablished. The rule regarding maintenance and repair of nonconforming signs With regard to the maintenance and repair of nonconforming signs, Rule 14-10.007, Florida Administrative Code, provides: The following shall apply to nonconforming signs: 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 . . . . * * * A nonconforming sign which is destroyed may not be reerected. "Destroyed" is defined as when 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 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. However, in the event that such damage occurs, a sign will not be considered destroyed if the sign owner shows that the replacement materials costs to reerect the sign would not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction. The following shall be applicable in determining whether the replacement materials costs to reerect the sign exceed 50% of the value of the structural materials in the sign: Structural materials shall not include the sign face, any skirt, any electrical service, electric lighting or other non- structural items. Structural materials shall include any support brackets for the face, any catwalk, and any supporting braces or members of the sign structure. The value of the structural materials in the sign immediately prior to destruction shall be based on the cost of all structural materials contained in the sign as it was configured just prior to damage, and the cost of such materials shall be based on normal market cost as if purchased new on or about the date of destruction, without regard to any labor costs or special market conditions. The materials to be included in the replacement materials costs to reerect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction and shall not include any material that is repaired on-site, but shall include any material obtained from a source other than the sign itself, whether used, recycled, or repaired. The repairs to the sign shall be with like materials and shall be those reasonably necessary to permanently repair the sign in a manner normally accomplished by the industry in that area. The cost of such materials shall be as described in paragraph (1)(d)2 . . . . Here, with regard to the signs at issue, the proof is uncontroverted that all the upright supports of both sign structures were so severely damaged as to require replacement. Consequently, it has been shown that the signs were "destroyed" unless Respondent can establish "that the replacement materials costs to reerect the sign . . . [did] not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction." The replacement materials costs to reerect the double-faced sign The value of the "instructional materials" in the double-faced sign immediately prior to destruction, based on all structural materials contained in the sign as it was configured just prior to damage, consisted of 10 wooden poles (upright supports) at $156.98 each; 28 wooden stringers (14 stringers per face) at $8.97 each; 2 galvanized steel catwalks (one on each side of the sign) at $1,400.00 each; and various angle steel supports for the catwalks, the value of which was not established of record. So configured, the value of the structural materials in the double-faced sign prior to destruction, excluding the value of the angle steel supports, totaled $4,620.96. The materials cost to reerect the sign (by returning the sign to its configuration immediately prior to destruction) consisted of 10 wooden poles at $156.98 each and 28 wooden stringers at $8.97 each, a total cost of $1,820.96. Excluded from the materials cost to reerect the sign was the value of the catwalks and angle steel supports which were recycled from the sign itself and, as necessary, repaired on-site. Comparing the value of the structural materials of the double-faced sign immediately prior to destruction (at least $4,620.96), with the replacement materials costs to reerect the sign, but excluding materials recycled on-site ($1,820.96), demonstrates that the replacement materials costs to reerect the sign did not exceed 50 percent of the structural materials in the sign, immediately prior to destruction. Consequently, under the provisions of Rule 14-10.007(1)(d), Florida Administrative Code, the double-faced sign is not considered destroyed, and was properly reerected. The replacement materials costs to reerect the single-faced sign The value of the "structural materials" in the single- faced sign immediately prior to destruction, based on all structural materials contained in the sign as it was configured just prior to damage, consisted of 10 wooden poles at $156.98 each; 14 wooden stringers at $8.97 each; 1 galvanized steel catwalk at a minimum value of $700.00; 5/ and various angle steel supports for the catwalk, the value of which was not established of record. So configured, the value of the structural materials in the single-faced sign prior to destruction, excluding the value of the angle steel supports and valuing the catwalk at $700.00, was $2,395.38. The materials costs to reerect the sign (by returning the sign to its configuration immediately prior to destruction) consisted of 10 wooden poles at $156.98 each, 14 wooden stringers at $8.97 each; and 1 galvanized catwalk at a minimum value of $700.00, a total cost of $2,395.38 (provided the value of the catwalk, as offered by Respondent, is accepted). Excluded from the materials costs to reerect the sign was the value of the angle steel supports which were recycled on-site. Comparing the value of the structural materials of the single-faced sign immediately prior to destruction ($2,395.38), with the replacement materials costs to reerect the sign, but excluding materials recycled on-site ($2,395.38), demonstrates that the replacement materials costs to reerect the sign exceeded 50 percent of the structural materials in the sign, immediately prior to destruction. Consequently, under the provisions of Rule 14-10.007(1)(d), Florida Administrative Code, the single-faced sign was destroyed, and was could not properly be reerected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which adopts the foregoing Findings of Fact and Conclusions of Law; which dismisses the notices of violation with regard to the double- faced sign (DOT Case Nos. 99-0263 and 99-0293, DOAH Case Nos. 99-4905T and 00-0134T); and which sustains the notices of violation with regard to the single-faced sign (DOT Case Nos. 99-0264 and 00-0026, DOAH Case Nos. 99-4906T and 00-0826T), cancels the single-faced sign permit, and orders the removal of the reerected single-faced sign. DONE AND ENTERED this 1st day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The despot Building 1230 Appalachia Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNOCO 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2000.
