Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Roger L. Irven, is a certified general contractor holding license number CG C027873. At all time material hereto, Respondent was licensed as a certified general contractor, doing business as Irven Construction Company. DOAH CASE NUMBER 85-0714 On about June 25, 1978, Respondent pled guilty and was adjudged guilty of the felony offense of wanton endangerment in the Circuit Court of Oldham County, Kentucky. On July 25, 1978, the Respondent was sentenced to three (3) years probation by the Oldham County Circuit Court. The Respondent was represented by counsel. Respondent was placed on probation with certain conditions. One of the conditions was that the Respondent receive treatment in the infirmary for his epileptic condition. The Court ordered that the Respondent be hospitalized for four (4) months in the prison infirmary. The Department of Professional Regulation, Construction Industry Licensing Board received applications from the Respondent to take the certified contractor's examination on December 16, 1982, April 1, 1983, August 17, 1983 and December 7, 1983. On each application, Respondent answered in the negative indicating that he had never been convicted of any offenses in this state, or elsewhere, other than a traffic violation. Respondent took the Certified Contractor's Examination four (4) times. Respondent passed the examination on the fourth attempt. On March 14, 1984, Respondent was licensed as a certified general contractor. DOAH CASE NUMBER 85-3393 On November 1, 1984, the Respondent contracted with Kathy and Larry Evans, 5746 Wingate Drive, Orlando, Florida, to remodel their home at a cost of $6,700.00. On November 5, 1984, the Evans' paid Irven Construction $3,350.00 towards the contract price. The specifications for the remodeling work were prepared by Irven Construction. Mr. Evans was told by the salesman for Irven Construction that the remodeling would commence within fifteen (15) days of signing the contract and be completed within forty-five (45) days of the commencement, which amounted to sixty (60) days for total completion after signing the contract. No work was performed on the Evans project until December 19 or 20, 1984, when the windows were put in. The air conditioning duct work and heating elements were put in and the old oil furnace was removed. Respondent informed the Evanses that no work was done before this because he was ill. On January 3, 1985 Irven Construction entered into a contract with Central Air, Heating and Cooling, Inc. to perform air conditioning and heating work on the Evans' home at a cost of $3,195. A few days after entering into the contract, Central Air & Heating completed only the rough-in of the contracted work. The rough-in consisted of the installation of the heating and air conditioning ducts and the furnace installation, but not the installation of the condensing unit. Central Air & Heating was given cheeks for $1,278 by Irven Construction for the rough-in work it had completed. The checks were deposited by Central Air & Heating in its bank account, but were returned because insufficient funds were on deposit to cover them. Central Air & Heating notified Irven Construction about the returned checks; the Respondent stated that he would submit another check, but failed to do so. Because it was not paid by Irven Construction, Central Air & Heating sent a Notice to Owner to the Evanses. The Evanses also received a Notice to Owner from Window Works, Inc. for custom windows which had been ordered by Irven Construction, but never paid for. Window Works filed a lien for $600 against the Evans t property due to it not being paid for the custom windows. Subsequently, the Evanses were sued in civil court by Window Works for the amount owed under the lien. The Evanses were required to pay Window Works the amount owed plus other costs, totaling $1,800. Window Works was not paid because Respondent gave the money to one of his salesmen to buy the windows. The salesman, Nr. Renfuller, kept the money and put the windows on credit. At the time that Respondent wrote the check to Central Air & Heating, Respondent thought that there was enough money in his account to cover it. Nothing was done on the Evans project in accordance with the contract after the rough-in by Central Air & Heating. At the time of the cessation of the work, the Evans job was 60% complete and the value of the work completed was approximately $3,400. On December 12, 1984, Respondent contracted with Irving Bernstein, 1018 Matchlock Drive, Orlando, Florida, to build an enclosed porch for a price of $2,000. The Bernsteins discussed the completion date of the contract with the Respondent and his brother, Richard Irven. Bernstein was told that the remodeling would commence three (3) days after Irven Construction obtained the permit for the work and that the work would be completed within seven (7) days after that. Bernstein paid Irven $100 at the time of signing the contract. Before signing the contract, Respondent informed Bernstein that several sub-contractors were available to start the remodeling, and, that construction could start as soon as the contract was signed. After signing the contract, no one immediately appeared from Irven Construction to perform the remodeling. Bernstein made several calls to Respondent and left several messages, seeking to obtain information as to when someone was coming to begin the remodeling work. When Bernstein spoke with the Respondent, the Respondent informed him that he had to obtain three (3) bids. On January 2, 1985, Bernstein paid Irven Construction $975.00, making his total payment $1,075. Respondent obtained the building permit for the Bernstein project on January 9, 1985. At the end of January, 1985, Respondent and his son arrived at the Bernstein residence to start the remodeling job. Respondent and his son worked approximately three (3) hours that day, putting in 2 x 4's around the sides. The following day, Respondent's brother and son worked on the project for approximately three (3) hours, removing some tiles off of the roof and the side molding from the house. When they left they stated that they would return the following Monday: however, no one came that Monday. That Monday morning, Bernstein called Irven Construction and spoke with Respondent's brother, Richard Irven. Respondent's brother informed Bernstein that Respondent had a bad back and that completion of the job would be delayed. Bernstein requested the return of his money, but no money was ever returned by Irven Construction. On February 21, 1984, Respondent wrote a letter to Bernstein indicating that he wanted off of the job since it appeared to him that Bernstein did not want him to finish. At the time of the cessation of work by Irven Construction, appoximately 50% of the work had en completed. Both Respondent and Bernstein believed that there was a breach of contract by the other. Bernstein contracted with another contractor, Mark Spires Construction Company, to perform the remodeling work. Bernstein's contract with Mark Spires involved more work than the contract with Respondent. Bernstein's contract with Respondent was for a simple porch close-in with no substantial roofing work. Spires Construction Company re-leveled the beams and reconstructed the 2 x 4's of the framework. To effectuate the two (2) walls envisioned by the contract of Respondent, the existing beams were to be utilized. The only thing that Respondent had to do was to tie into the existing house. The Respondent took off the top row of tiles on the roof so he could tie it in. The only improvements Respondent made to the existing roof was "ducking and drying-in". On January 14, 1985, Sam Ross entered into a contract with Irven Construction, to remodel his home's porch, at a cost of $1,550. Ross chose Irven Construction because Irven Construction had contracted to remodel the porch of his neighbor, Nr. Bernstein, and the cost of the Bernstein job sounded reasonable. Ross was informed by Irven Construction that they would be working on both his job and Bernstein's job at the same time. At the time of signing the contract, Ross paid Respondent $775. Ross discussed the commencement and completion of the project with Respondent's brother, Richard Irven. Ross was told that the work would commence within ten (10) days of the signing of the contract and would take about five (5) days thereafter for total completion. Irven Construction delivered some supplies to his home at the same time supplies were delivered to the Bernstein project site. Because commencement of work on the project was slow, Ross called Irven Construction numerous times concerning the work on his home. Respondent eventually assigned an individual named Nark Withlow to perform work on the Ross project. However, Ross did not want Withlow to work on the job because Ross felt that a certified carpenter was needed; Mark Withlow was qualified as a remodeler. Thereafter, Ross refused to allow anyone from Irven Construction to work on his home because of his dissatisfaction with Mark Withlow's assignment to his job and because he discovered the problems that Bernstein and Respondent were having. Ross requested the return of his money from Respondent. Respondent offered, by letter dated February 21, 1985, to refund $513. Ross did not respond to Respondent's letter because he wanted a full refund and felt that Respondent's offer was "ridiculous." Ross later contracted with Mark Spires Construction to perform the remodeling work, which was eventually completed. The materials left at the-project site were used by Mark Spires Construction. The value of the goods and materials which were delivered to and remained at the Ross project was between $50 and $80.00. Ross sued Irven Construction in civil court and obtained a judgment for the full amount he paid Respondent, plus court costs. Respondent was involved in an automobile accident on July 3, 1984. As a result of the accident, Respondent suffered severe head, shoulder and back injuries. In November of 1984, Respondent was hospitalized with a "trimmed disc"; in January, 1985, Respondent briefly returned to active participation in the business but reinjured his back while working on the Bernstein project. After the July 1984 accident Respondent provided little or no control or supervision to his business and was bed-ridden frequently from July 1984 to March, 1985. In addition, the automobile accident caused Respondent's seizures to return. Respondent has suffered from a seizure disorder, i.e. epilepsy, since 1975. Respondent was seizure free from 1979 to 1983. The type of seizure that the Respondent suffers from affects his memory and decision making and may last for several days following a seizure activity. Since the accident in July, 1984, Respondent has been taking medication for his back pain, i.e. Darvocet, and medication for his seizures, i.e. Tegretol, 200 mg. From August 29, 1984 to March, 1985, Respondent was having heavy seizure activity and frequented the Epileptic Foundation of Orlando for treatment at least once a month or every six weeks. He was advised by the Foundation to always take his medication and to be with someone. During the same period, he was treated by a Dr. Litchfield, a chiropractor, at least two to three times a week. The Respondent's ability to give effective directions or make decisions was impaired due to his physical problems from August 1984 to March 1985. In August or September, 1984, Davis Chaffee began working with Respondent as a salesman. After about ten (10) days to two (2) weeks as a salesman, Respondent allowed Chaffee to run the business due to the Respondent being bedridden most of the time and not being able to function as a result of the accident of July, 1984. Davis Chaffee had no construction background; his experience was in sales and business administration. To assist Chaffee in running the business, Respondent prepared an outline which included a basic scale for bids. James NcCall served as the superintendent for Irven Construction. Respondent felt that NcCall was competent to be superintendent as long as he was supervised by Respondent. After Respondent's accident of July, 1984, McCall handled all the construction aspects of the business including overall supervision of the project. McCall continued as the superintendent on the jobs, handled bids and proposals and dealt with the prints, materials and subcontractors for all the jobs. Despite Respondent's reservations about McCall's abilities, McCall was allowed to literally "run the business" because of Respondent's physical problems. Davis Chaffee had the authority to approve contracts and prepare bids without consulting McCall. Chaffee was fired by Respondent in December, 1984. DOAH CASE NUMBER 85-4216 On September 27, 1984 Respondent contracted with Richard Loman to build an addition to Loman's residence at 783 Formosa Drive, Winter Park, Florida at a cost of approximately $20,000. Loman and Respondent discussed the commencement and completion date of the remodeling and Loman was told that the project would be completed within 45 days from approval of the plans and the signing of the contract. Loman paid Irven Construction $10,000 as a deposit, $500.00 on September 24, 1984 and $9,500 on October 2, 1984. In addition, Irven Construction received a contractor's draw of $3,333 on October 23, 1984 and $3,333 on November 5, 1984. As of November 5, 1984, the drywall, insulation, fixtures, toilet, vanity, heat and air, and the hot water heater remained to be completed. On January 16, 1985, the contract price was increased another $1,000 for additional electrical work which was requested by Loman. The work on the remodeling was progressing slowly and Loman repeatedly called Respondent to get someone out to complete the remodeling. Respondent repeatedly promised to send someone to complete the work. In February, 1985, a drywall person came out and completed the drywall. Loman received a letter dated February 1, 1985 from the Respondent. The letter indicated, among other things, that the Respondent was physically ill but had all intentions of complying with the contract and completing the remodeling and that he had a contractor who would contact Loman to arrange to complete the remodeling. Since the drywall person completed his work in February, 1985, no one has gone to the Loman's residence to complete the remodeling. No contractor has contacted Loman to arrange for the completion of the project and no money has been returned to Loman. At the time Irven Construction stopped work- on the Loman project, it was about 90% complete. Loman completed the job himself on June 1, 1985. Loman received, by certified mail, liens from Tillman's Plumbing and Jackson Drywall Service for the remodeling work done on his home under the contract with Respondent. Tillman's lien was $360 and Jackson Drywall's lien was $1,350. DOAH CASE NUMBER 85-4246 On August 29, 1985, Irven Construction entered into a contract with Stephen Dubin and his wife to remodel their family/living room at a cost of $7,200. In accordance with the modified specifications, electrical lights and an electrical fan were installed. James McCall, Respondent's superintendent completed most, if not all, of the electrical work. The project was completed and Irven Construction was paid in full. The Seminole County Building Department's records show that a building permit for the Dubin project was applied for, approved, and assigned a permit number, but never issued because it was not picked up. The Building Department's records also showed that no electrical permit was applied for. Respondent was required by the Seminole County Building Code to obtain a building permit before commencing the remodeling. After a building permit is issued, periodic inspections of the project site are required. Without a building permit, there are no inspections by the Building Department. During this period, the Respondent was having personal problems with the employee that was responsible for picking up the permit. The Respondent was unaware that the employee had failed to properly perform his duties by picking up the permit. Respondent was ill during this period and had very little input into the Dubin project.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED THAT: Respondent's license be suspended for a period of four (4) years, with the condition that he may be eligible to apply to the Board for reinstatement after a period of two (2) years and upon a showing satisfactory to the Board that his financial affairs are in good and sound condition and that he is physically capable of carrying on a contractor's business. Further, for the purposes of such an application for reinstatement, Respondent shall be required to appear before the Board for such questions as the Board feels appropriate and shall supply the Board with such documents as the Board feels necessary. DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stuart G. Green, Esquire 712 East Washington Street Orlando, Florida 32801-2994 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street. Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32202 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 2 and 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as legal argument. Rejected as subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 40. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 41. Adopted in Finding of Fact 49. Adopted in Finding of Fact 49. Partially adopted in Finding of Fact 51. Matters not contained therein are rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 50. Adopted in Finding of Fact 51. Adopted in Finding of Fact 51. Rejected as recitation of testimony. Adopted in Finding of Fact 51. Adopted in Finding of Fact 53. Rejected as a recitation of testimony. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 43. Adopted in Finding of Fact 44. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 45. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. Adopted in Finding of Fact 48. Rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 18. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Partially adopted in Finding of Fact 25. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Partially adopted in Findings of Fact 27 and 28. Matters not contained therein are rejected as not supported by competent and substantial evidence. Adopted in Finding of Fact 27. Rejected as a recitation of testimony and/or subordinate. Adopted in Finding of Fact-29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Partially adopted in Findings of' Fact 31 and 32. Matters not contained therein are rejected as subordinate. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34.I Rejected as subordinate and unnecessary. Adopted in Finding of Fact 37. 111. Rejected as subordinate and unnecessary. 114. Rejected as subordinate and unnecessary. Rulings on Proposed Findings of fact submitted by the Respondent (None submitted).
The Issue The issues to be resolved in this proceeding concern whether an advertising billboard sign, bearing permit number ("Tag No.") BY334, and a different sign bearing permit number AF251, were illegally rebuilt and whether sign number AF251 was destroyed and illegally rebuilt, given the standards in Florida Administrative Code Rule 14-10.007(6)(a).
Findings Of Fact Findings of Fact Concerning Tag Number BY334 The Petitioner Bill Salter Advertising, Inc. (Petitioner, Salter) owns and operates an outdoor advertising sign business and outdoor advertising sign structures, as pertinent hereto, in Santa Rosa County, Florida. The subject sign, bearing Tag Number BY334, is located on State Road 89 in Santa Rosa County, Florida, approximately .01 mile north of Jones Avenue. For purposes of the authority cited and discussed below the subject sign structure is a "non conforming sign." Hurricane Dennis came through Santa Rosa County and damaged sign BY334 on July 10, 2005. Some two or three days later the general manager of Salter, David McCurdy, visited the sign site to assess the damage. Three ground supports had broken and the sign had been laid over on the ground. Prior to its being blown over by the storm, it had three ground supports, eight sheets of plywood as vertical supports and 10 stringers. All three ground supports and some of the stringers were broken. Some of the stringers were left over from an additional sign face that had been previously removed from the permitted sign. The plywood vertical supports were intact, however. Mr. McCurdy assessed the damage and completed a "Florida Construction Order". The Construction Order indicated that eight sheets of plywood were in the original sign. The plywood sheets were still nailed to the structure two or three days after the storm. On July 17, 2005, there was plywood contained in a bundle of material next to the sign. The bundle was created because the Petitioner had sent a work crew to the site to pick up the material on the ground and bundle it to prevent theft or vandalism. The Construction Order provided for the existing plywood and the existing stringers to be re-used in making repairs to the sign. Additionally, Mr. McCurdy ordered materials for repairs based on the assessment which had been documented in the Construction Order. He engaged a company called "Masterbuilt" as a contractor to make repairs to sign BY334. That contractor requested no additional materials to be provided by the Petitioner and was required to perform the work according to the Construction Order and Mr. McCurdy's instructions. It had no discretion to purchase or use any additional material. The sign was rebuilt in accordance with the Construction Order. The Petitioner assessed the damage to the sign at 47 percent. The value of the structural materials in the subject sign structure immediately prior to the July 2005 storm damage was $611.00. The cost to repair the structure immediately after the hurricane was $291.00. The replacement materials to repair the sign constituted 47 percent of the value of the materials in the sign immediately prior to the storm damage. The only new materials used in the repair of the sign structure were three poles. There is no question based upon the persuasive evidence adduced that more than 50 percent of the upright supports of the sign structure were damaged such that replacement of them was necessary. However, the preponderant, persuasive, evidence does not establish that the replacement costs to re-erect sign BY334 and repair it exceeded 50 percent of the value of the structural materials in the sign as to their value immediately prior to the storm destruction. The Petitioner's evidence and testimony is credible and persuasive to the effect that the replacement materials amounted to 47 percent of the value of the materials in the sign immediately prior to the damage caused by the storm. Tag Number AF251 The Petitioner owns and operates an outdoor advertising sign located on Interstate 10 in Santa Rosa County, Florida, 0.238 miles east of County Road 89. That sign structure is permitted with state permit number AF251. There is no dispute that the subject sign structure is a "non-conforming" sign. The sign was damaged by Hurricane Dennis on July 10, 2005. The General Manager of the Petitioner, David McCurdy, inspected the sign several days after the storm. Three support poles had been broken and some of the sign face had been detached and leaned back on vegetation behind the sign. Prior to the storm the sign had five ground supports, 10 vertical supports (plywood), no braces and it had stringers composed of 30 pieces of 2 x 6 x 12 foot lumber. Mr. McCurdy ordered materials for the repair. Mike Crawley, sales manager for Salter testified that he delivered three poles to the site. The Petitioner's testimony indicates that existing vertical supports were reused (plywood supports) with the exception of two new pieces of plywood. Mr. Crawley maintains he did not deliver any 2 x 6 boards to the site and that the contractor did not request any additional materials. The Petitioner assessed the damage repair value at 35 percent of the value of the structural materials of the sign as they existed immediately prior to the July 2005, storm damage. The total value of those materials before the storm damage was assessed by the Petitioner at $945.00 and so indicated on the Construction Order. That figure included 10 sheets of plywood for vertical supports at $22.00 per sheet and 30, 2 x 6 x 12- foot boards at $8.00 a each, used as stringers, as well as five existing wooden pole vertical supports at $97.00 dollars each for a total pre-damage value of $945.00 in structural materials. The Construction Order and Mr. Crawley's testimony indicates that the value of the materials used to re-build the sign was 35 percent of that $945.00 figure. He indicated in the Construction Order, at Respondent's Exhibit five, that three pole ground supports were added, that two vertical sheet plywood supports were added and that existing stringers were used with no new materials for stringers being purchased. The two sheets of plywood purportedly purchased total $44.00 dollars and the three poles purportedly purchased totaled $291.00 dollars. This is a total rebuild cost of $335.00 dollars according to the Petitioner. The Petitioner thus maintained that the only new materials incorporated into the repaired sign structure were three poles and two new sheets of plywood. This testimony and evidence is not accepted as credible. The photographs in evidence in the Respondent's exhibits clearly show five new poles being added to the sign or a total replacement of the poles supporting the sign vertically. Instead of two new sheets of plywood, the photographs clearly show considerably more than that amount of new plywood added to the sign. Additionally, the sign was constructed in a manner not in the same configuration as the original sign existed before the hurricane damage, because significantly fewer stringers were used. The Construction Order and Mr. Crawley's testimony indicates that existing stringers were used. Even if that were the case, substantially fewer stringers were used in the sign than were used before. Moreover, the photographs in evidence show clearly that the stringers that were used in the repair work were all new pressure-treated materials. They clearly are new materials in appearance and are not existing materials which would exhibit weathering. Thus the 35 percent re-build cost in structural material value versus the $945.00 dollar value of all components of the sign, immediately prior to the storm, is not deemed credible nor is the figure of $335.00 in purported re- build costs. The essential point here, in addition to more new materials being used than were represented by the Petitioner to have been used, is that the sign was not configured after the repair work in the same way it was before the storm damage, when it had legal status as a nonconforming sign which was permittable. Florida Administrative Code Rule 14-10.007(6)(a)C states: The materials to be included in the replacement materials costs to re-erect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction, and shall include any material obtained from a source other than the sign itself, whether used, recycled, or repaired . . . . Based upon the testimony of the Department's witnesses, and particularly the evidence embodied in the photographs in the Respondent's evidence, the new materials included in the sign substantially exceed those stated in Mr. Crawley's testimony and in the Petitioner's evidence, including in the Construction Order. It is therefore determined that more than 50 percent of the value of the structural materials in the sign, immediately prior to destruction, was replaced with new materials. Thus, those materials would exceed 50 percent of the value of the structural materials in the sign as they existed immediately prior to destruction. Additionally, more than 50 percent of the upright supports of the sign structure was physically damaged (broken poles), such that normal repair practices of the industry would call for replacement of those broken supports. Rather than replacing three of the poles as the Petitioner's witnesses maintained, the sign was rebuilt with five new poles. Parenthetically it is thus noted that, under the provision of the proviso of the above-cited rule, at paragraph (6)(a), the sign may be deemed "destroyed" since more than 50 percent of its upright supports were damaged or broken.1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Department of Transportation revoking sign permit number AF251, and that the Notice of Intent to Revoke sign permit number BY334 be dismissed and that sign permit BY334 remain valid. DONE AND ENTERED this 19th day of January, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 19th day of January, 2007.
The Issue The issue in this case, as set forth in a Notice of Violation initially issued by Respondent, Department of Transportation (the "Department"), on February 15, 2011, is whether Petitioner, North American Media, Inc. ("NAM"), illegally erected and maintained a roadside billboard for which a permit was required, but not obtained.1/
Findings Of Fact The Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the State highway system, federal interstate, or federal-aid primary highway system. State Road (SR) 50, at all times material to this proceeding, has been a federal-aid primary highway. The area in question for purposes of this proceeding includes the intersection of SR 50 with SR 436, a non-regulated highway. Besides the NAM sign (which will be discussed more fully below), there are three other outdoor advertising signs relevant to this case. The three signs are designated as: CH801 (constructed in 1979), located on the southbound lane of SR 436 just west of the NAM sign; CH258/259 (constructed in 2009), located just east of the NAM sign and in closer proximity to the westbound lane of SR 50; and CBS770/769 (constructed in 1980), located further west from the NAM sign on the westbound lane of SR 50. The NAM sign is located on the southbound lane of SR 436, almost directly across from the CH801 sign. The sign is located within 660 feet of SR 50, but by its design, is meant to be visible from SR 436. The sign is a mono-pole sign with two digital sign facings in a "V" shape. The narrow portion of the "V" is pointed toward SR 436. The sign has an electronically changeable face; the face remains static for six seconds before changing. (A simple schematic of the subject area is appended to this Recommended Order to illustrate the proximity of the signs to each other and to the two state roads. The schematic was accepted into evidence as Petitioner's Exhibit 1.) The NAM sign was constructed in late November 2010 at a cost of about $300,000. At that time, CH801 was already in place and did not have a permit from the Department. CH801 is larger and higher than the NAM sign. It, like the NAM sign, is within 660 feet of SR 50. However, at the time the NAM sign was built, the Department's database listed CH801 as being on SR 436, not SR 50. (In June 2012 the Department amended its database to declare the southern face of the sign to be visible from SR 50, thus, requiring a permit for that side. That side of the sign was then given the designation AU902.) Just a year before the NAM sign was built, the Department issued a permit for the CH258/259 sign. That sign is in closer proximity to SR 50 than the NAM sign and is not as visible from SR 436. CH258/259 was built approximately 490 feet from the existing CH801. On February 5, 2011, the Department posted a Notice of Violation on the NAM sign, citing failure to have a required sign permit. Gustinelli saw the notice on February 17 or 18, 2011. A Notice of Violation was also mailed to "North American Media" in Orlando, Florida, on February 18, 2011. That entity has nothing to do with NAM, which is located in Deerfield Beach, Florida. Another notice was mailed the same day to NAM's proper address, but the notice cited the wrong mile post marker for the NAM sign. The mile post marker was corrected on another notice that was mailed to NAM, but Gustinelli denies ever receiving a copy of the final version. On March 15, 2011, the Department sent out yet another notice, again citing the wrong mile post marker. The mistake was corrected in a notice sent out on April 26, 2011, but Gustinelli says he did not receive the corrected notice. Then, on June 12, 2012, the Department sent out another notice, but again sent it to the wrong address. Notwithstanding all the problems experienced by the Department in trying to put NAM on notice about the sign, it was ultimately brought to NAM's attention that the Department was requiring a permit for the sign. Gustinelli was surprised by this position for a number of reasons: Gustinelli had done due diligence before he constructed the sign. He visually inspected the area where the sign was to be placed, researching the Department's database to see if similarly situated signs were required to be permitted. Gustinelli corresponded with a Department employee through his agent, Reid Whisonant, to ascertain whether permitting would be required. (The employee's response was somewhat nebulous, but definitely could have been read to suggest that no permit was necessary.) Gustinelli reviewed how other signs in the area were listed in the Department's database, then ascertained that his proposed sign would not be in a controlled area that required a permit. NAM contends that the Department, through the person of Robert Jessee, indicated that no permit was necessary for the proposed NAM sign. The primary basis for NAM's contention is an email dated August 20, 2010, from Jessee to Whisonant. The email, a response to an inquiry by Whisonant, states in its entirety: Both sections 7500300 and 75120000 [the proposed site of the new NAM sign] are listed as secondary inside urban. The current statute s. 479.07(1), F.S. states that a sign is not allowed to exist on a state highway (secondary) OUTSIDE and [sic] urban area. This would allow signage without a permit from FDOT, as long as there is not another factor that would cause it to be within a controllable area. The email, while seeming to say that the sign would not need to be permitted, contains a caveat. It is clear the Department was not addressing all factors that might require a permit for the NAM sign. And although it is understandable that Gustinelli might believe the email asserted a position by the Department that no permit would be required, it is not the only interpretation of that email. At the end of the day, the Department determined that the NAM sign was visible from SR 50 and, thus, was required to have a permit. The pertinent issue then becomes whether the NAM sign is a "visible sign" as that term is defined in statute. See §§ 479.01(29), Fla. Stat. (2011).2/ The definition appearing therein says that a visible sign is one which has an advertising message or informative content, whether legible or not, which is capable of being seen without visual aid by a person of normal visual acuity. The definition is clear, but subject to some interpretation. In the present case, both parties produced videotapes showing the sign as it appears from SR 50. The Department's videotape was taken by a person standing in the median on (not driving across) the SR 50 overpass that traverses SR 436 in the subject area. In that video, the NAM sign can be seen clearly and most of its message can be discerned. The video, however, is not a perspective from the "main travel way" of the road. The NAM-produced video, conversely, is taken from an automobile driving eastbound at the posted speed limit across the overpass. While the NAM sign can be seen in the video, its message is not clearly seen, and the sign can be seen only peripherally. The sign can be seen for only about three seconds when driving at the speed limit. Further, the front of the sign can only be seen by persons in the eastbound lane of SR 50; persons driving west could only see the inside of the "V" of the sign. By way of comparison, the southern side of CH801 (a/k/a AU902) can be seen for five seconds; CBS 770/769 can be seen for three seconds, and CH259/259 can be seen for three seconds. There is no timeframe for visibility set forth in the rule, but the time is important. A driver may have "normal visual acuity," but must not divert his eyes from the road for a long period of time. Considering all of the evidence, the message on the NAM sign is not clearly and completely visible from a moving automobile for a period of time long enough to read and understand its message or content. It is, therefore, not a visible sign, unless all the signs that appear in the Department's video are also visible signs. The Department does not contend that the other non-permitted signs are in violation of statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation rescinding its Notice of Violation against North America Media, Inc. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of September, 2012.
The Issue Whether Respondent has erected or maintained a sign in the right-of-way of State Road 37 and, if so, should it be removed.
Findings Of Fact On April 15, 1993, Petitioner, the Department of Transportation, served a Notice of Violation on Respondent, Haven Furniture Co., Inc., advising that it had erected and maintained a portable sign, a fixed concrete sign and several flag poles advertising its business which were improperly placed in the right- of-way on State Road 37 in Polk County, Florida. State Road 37 is a roadway maintained by Petitioner. Only the fixed concrete sign is at issue herein. The concrete sign bears the legend "Claussen's Fine Furniture". The sign measures more than thirty feet long, is made of cement and steel and is anchored in the ground to withstand wind shear. It is situated perpendicular to State Road 37. The sign was erected in April of 1991. Respondent admits that most of the sign is situated within the right- of-way of State Road 37. The sign is located approximately 56 feet from the edge of State Road 37. The inside edge of the sign is approximately 56.2 feet from the edge of the roadway. The right-of-way at that location extends approximately 88 feet from the edge of the roadway. As such, the sign is located upon the right-of-way of State Road 37. Additionally, Respondent admits that Petitioner has not given permission for the sign to occupy a portion of the right-of-way. Respondent did not speak to representatives of Petitioner prior to erection of the sign in question. Likewise, Respondent did not check the official property records of Polk County or commission a survey to determine the right-of-way prior to erecting the sign. Petitioner's agents did not see the sign when it was being erected in 1991. Prior to erecting the sign, Respondent obtained a permit from Polk County. In applying for the permit, Respondent spoke to Bill Padgett, Polk County's Code Inspector in Lakeland, Florida. Padgett assisted Respondent in completion of the application and considered the pertinent wind shear specifications. Padgett generally advised Respondent as to the particulars for proper erection of the sign to comply with Polk County's regulations. In this regard, Padgett went to the site where the sign would be erected. Padgett walked off the area where the sign would be situated to the center of the highway and gave Respondent an estimate of what he considered to be the right-of-way for State Road 37. Padgett is an employee of Polk County. He is not authorized to give permission to an owner, as Respondent, for the erection of a sign in a road right-of-way that is maintained by Petitioner. As such Padgett is not an agent of Petitioner and representations and authorizations by Padgett are not binding upon Petitioner. Respondent immediately removed the portable sign and the flag poles which were included in the three notices of violation in an effort to obtain some leniency from Petitioner such that the concrete sign at issue can remain situated in the right-of-way.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner issue a final order directing that the sign in the right-of-way on State Road 37 adjacent to Respondent's property be removed at Respondent's expense within thirty (30) days of its final order. DONE AND ENTERED this 17th day of June, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 17th day of June, 1994. APPENDIX IN CASE NO. 93-7182T Rulings on Petitioner's proposed findings of fact: Paragraph 3, adopted as modified, paragraph 9, recommended order. Paragraph 3, adopted as modified, paragraph 9, recommended order. Paragraph 6, adopted as modified, paragraph 4, recommended order. Rulings (Comments) on Respondent's proposed findings of fact: Respondent's proposed findings are included in two unnumbered paragraphs which were considered. The proposed findings are, in large part, adopted in the recommended order. However, the proposed finding relative to the position that Petitioner's agent, Dunsford, saw the sign being constructed and did nothing for more than two (2) years is specifically rejected, paragraph 4, Recommended order. Additionally, Respondent's proposed finding that agent Casey saw another sign which allegedly was a violation was rejected as irrelevant. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation Haydon Burns Building 562 Suwanee Street Tallahassee, Florida 32399-0450 Thomas H. Duffy, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwanee Street, M.S. 58 Tallahassee, Florida 32399 Glen T. Shelby, Esquire Post Office Box 3225 Lakeland, Florida 33802
Findings Of Fact At all times pertinent to this proceeding, Respondent was a closely held corporation owned and operated by Salvatore Studiale and his family, including his wife, Celia, their son Jack Studiale and their daughter, Caroline Greenlaw. Respondent owns and operates Tropical Acres Steak House, a restaurant located in Broward County, Florida. Respondent erected a sign in 1975 in Broward County ninety feet north of Griffin Road adjacent to I-95 that is the subject of this proceeding. In a 1976 proceeding involving the same parties to this proceeding, Petitioner cited the same sign that is the subject of these proceedings for having been erected without certain permits in violations of Sections 479.02, 470.07(1), and 479.111(2), Florida Statutes (1975). Thereafter the case was referred to the Florida Division of Administrative Hearings (DOAH) and assigned DOAH Case No. 76-473. A formal administrative hearing was held in Case No. 76- 473 by a DOAH Hearing Officer who entered a Recommended Order. The following findings of fact, taken from the Recommended Order entered in Case No. 76-473, are consistent with the evidence presented before me and are hereby adopted as my findings of fact: In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 8, 1975. The property deeded to Broward County was of a value of approximately $18,000. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks [and] Seafood 1/2 Mile". Investigation by Petitioner's representatives in the Spring of 1976 revealed that no state permit had been applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee". The Hearing Officer in Case 76-473 concluded that the subject sign was exempt from Petitioner's permitting requirements: ... because Section 479.16(11)1/ excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" (sic) adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls with the exception stated above. The Hearing Officer in Case No. 76-473 recommended that "the allegations against Respondent be dismissed". Thereafter on August 12, 1976, Petitioner entered a Final Order in Case 76-473 which found that the findings of fact and the conclusions of law contained in the Recommended Order were correct and adopted the Recommended Order as its Final Order. The site of the subject sign had been the location of a gasoline service station before the Studiales purchased the property. When the sign was erected, the site was located in unincorporated Broward County. In July 1990 the site was annexed so that at the time of the formal hearing the sign was located within an incorporated municipality. In 1978, Respondent's sign was damaged by a wind storm. With Petitioner's approval, the sign was restored. On June 13, 1991, Petitioner's investigators inspected the subject sign. At an undetermined time between 1978 and June 13, 1991, a strip was attached to the supporting posts beneath the main faces of the sign so that two additional sign faces, one facing north and the other south, were created. The message that was placed on each face of this smaller sign was "1/2 Mile West" together with directional arrows. This addition was for the purpose of directing traffic to Respondent's restaurant, which was located 1/2 mile west of the sign. The directional message on each face of the smaller sign was removed prior to the formal hearing that was held in this proceeding. No permit for the sign has been applied for by Respondent or the Studiales and no permit has been given by Petitioner. Petitioner does not charge any permit fee for a sign unless a permit has been issued. There was a dispute as to whether Respondent had been charged and had paid annual fees for the subject sign. The greater weight of the evidence establishes that in 1986 and 1987 Respondent received billings from Petitioner for the subject sign as a result of computer error and that Respondent paid those billings. It is clear, however, that the Studiales were aware that no permit had ever been issued for this sign and that they relied on the determination made in Case 76-473 that the sign was exempt from permitting. Respondent has attempted to establish that it has placed great reliance in making its business plans on Petitioner's representations and assurances that the subject sign was a legal structure. Although it is clear that the subject sign is important to Respondent's business because it serves to direct customers to the restaurant location, Petitioner's delay in challenging the legality of the sign has not prejudiced Respondent. Respondent has been benefitted by the continued existence of the subject sign. The size of the sign exceeds 10 square feet. On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for the subject sign, based on its determinations that the sign was not exempt from pertinent permitting requirements, that it did not have a permit, and that it was improperly spaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that the status of Respondent's sign is "nonconforming" and which rejects Petitioner's contention that the sign is illegal. DONE AND ORDERED this 2 day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of April, 1992.
The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the Notice of Illegal Sign dated September 17, 1987; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On September 17, 1987, the Department issued a Notice of Illegal Sign on Right-of-Way for an outdoor sign located in the water and adjacent to U.S. 1 approximately 1.39 miles north of Jewfish Creek Bridge, Monroe County, Florida. The sign in dispute was visible from the road and stated the following: Egan's Waterway Restaurant Gas Good Fast Food. Tourist Info M M 107 1/2 (Right after bridge) The sign did not have a state outdoor advertising permit attached to it. The sign was located approximately 85 feet from the centerline of the road. U.S. 1, also known as State Road 5, is designated as a federal aid primary highway in Dade and Monroe Counties. Egan Adams is manager and president of Egan's Waterway. Mr. Adams admitted he is the owner of the sign in dispute. The sign was mounted on a pontoon-type vessel and was anchored in knee- deep water. The vessel had been registered as a boat and identified by Florida 7454 FG. Prior to issuing the Notice of Illegal Sign, the Department's employee had warned Mr. Adams that the sign was located within the right-of-way. On or about September 19, 1987, Mr. Adams moved the sign further away from the road and removed the orange violation sticker which had been posted on it. The right-of-way in the vicinity of the sign in dispute is 200 feet wide. The centerline of the right-of-way corresponds to the centerline of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a Final Order assessing a fine of $75.00 against Egan Adams pursuant to Section 479.107, Florida Statutes (1987). DONE and RECOMMENDED this 1st day of April, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4495T Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted. Paragraphs 2-6 are accepted. The first sentence of paragraph 7 is accepted. The rest of paragraph 7 is rejected as a conclusion of law, argumentative. Paragraphs 8 and 9 are accepted. COPIES FURNISHED: Charles G. Gardner, Esquire 605 Suwannee Street Tallahassee, Florida 32301 Egan Adams Manager/President of Egan's Waterway Box 2, M.M. 107.5 Key Largo, Florida 33037 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether the Respondent's sign identified in the Department's Notice NO. 6-268 is in violation of Section 479.11, Florida Statutes.
Findings Of Fact The sign that is the subject of this proceeding is a wooden billboard sign owned by the Respondent. The sign is located on the "northbound" side of the Overseas Highway, which is also known as U.S. No. 1 and as State Road No. 5, about 300 feet "south" of the South Pine Channel Bridge in Monroe County, Florida. The Overseas Highway is part of the State Highway System and the federal-aid primary highway system. Along the portion of the Overseas Highway where the subject sign is located, the right-of-way owned by the State of Florida is 400 feet wide, extending 200 feet in each direction from the center line of the highway. The subject sign is located well within the state right of way, the closest portion of the sign being approximately 50 feet from the center line of the highway right-of-way. On March 30, 1982, the parties to this case entered into a settlement agreement in DOAH Case No. 79-1240T to resolve a dispute about whether this same sign should be removed. Their settlement agreement, which was read into the record of the prior proceeding, includes a provision that the Respondent will voluntarily remove the subject sign by no later than February 28, 1987.
Recommendation Based on the foregoing, it is recommended that the Department of Transportation issue a Final Order in this case requiring the removal of the subject sign and assessing against the Respondent the costs of removal and a fine in the amount of $75. DONE and ENTERED this 30th day of April 1990, at Tallahassee, Leon County, Florida, MICHASE M. PARRISH 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 30th day of April, 1990. COPIES FURNSIHED: Rivers Buford, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ms. Betty M. Rein Betty M. Brother Real Estate, Inc. Post Office Box 456 Big Pine Key, Florida 33043-0456 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact In 1968, the Respondent constructed a V-type outdoor advertising structure adjacent to 1-95, 1.66 miles north of SR 50 in Brevard County, Florida. This sign was permitted by the Department as a non- conforming sign in 1971 when the Department issued permit number 4410-10. When permit number 4410-10 was issued for this sign, the copy on the sign advertised Texaco. The sign has carried a Texaco advertisement continuously since 1971. In September of 1985, as a result of Hurricane Elena, the subject sign sustained wind damage which required repairs to be made to the sign. The wind damage caused by Hurricane Elena required the Respondent to expend the sum of $308.25 to repair the subject sign. This sum covered the cost of three replacement poles, nine bags of Sackcrete cement, and six replacement boards. The total depreciated value of the structural materials in the subject sign immediately prior to the wind damage inflicted by Hurricane Elena was $1,055.00. The sign which is the subject of this proceeding now stands at the location in question (adjacent to I-95, 1.66 miles north SR 50 in Brevard County). It displays the same sign permit that was issued by the Department in 1971 for this location. With the exception of the other face of the V-type structure, the nearest sign to the subject structure is 1,100 feet away.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Violation Notice issued on December 16, 1985, seeking removal of the Respondent's sign adjacent to I-95, 1.66 miles north of SR 50 in Brevard County, Florida, be DISMISSED; and it is further RECOMMENDED that the Notice of Intent to Revoke sign permit number 4410-10 be DISMISSED. THIS RECOMMENDED ORDER entered this 16th day of October, 1986 in Tallahassee, Leon County, 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 16th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0371T 86-0452T Rulings on Petitioner's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as the sign retains its status as nonconforming sign. Second sentence is not a finding of fact. Ruling on Respondent's proposed findings of fact: 1.- 8. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 A. J Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The issue in this case is whether the subject sign was in violation of Section 479.07(1), Florida Statutes, and Rules 14-10.04(1) and 14-10.07(1) and (2)(a), Florida Administrative Code.
Findings Of Fact Notice as required by the statutes and rules was provided the Respondent. The sign in question bears the name of Melweb, the Respondent in this cause, on its face as required by law. The sign in question was constructed on or about January 13, 1978. It was constructed in the same location as a pre-existing sign which had been destroyed. See Exhibits 3, 4 and 5. This destruction was the result of a windstorm the day before the pictures, Exhibits 3, 4 and 5, were taken. The subject sign is located on US Highway 1 outside an incorporated city or town within the State of Florida, a roadway open to the public at all times relevant to the other testimony received. The sign which was destroyed bore the licensing tag issued by the Department of Transportation in 1974, 442-12, and all fees were current on the sign which was destroyed. This permit is currently attached to the subject sign which is newly constructed. The subject sign was constructed with new poles and new facing, and is slightly smaller than the original sign. The subject sign is located 250 feet from another sign owned by Melweb on US Highway 1. Melweb has not applied for a new license or permit for the subject sign, which would have been required because the original sign which was destroyed did not conform to existing standards of spacing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the subject sign be removed by the Department of Transportation. DONE and ORDERED this 5th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Tom Yates, Bulletin Manager Melweb Signs, Inc. 300 Fentress Boulevard Post Office Box 9130 Daytona Beach, Florida 32020
