The Issue Whether Florida Administrative Code Rule 14-10.007(2)(b) is an invalid exercise of delegated legislative authority by enlarging, modifying, or contravening the provisions of the law implemented, or is arbitrary or capricious.
Findings Of Fact Respondent is the State agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway system, interstate, or federal-aid primary system in accordance with Chapter 479, Florida Statutes. Petitioner owns and operates outdoor advertising signs in the State of Florida. In December 2004, Petitioner purchased four outdoor advertising signs adjacent to Interstate 4 in Polk County, Florida. The signs are located on lots zoned for residential use. In accordance with Section 479.111, Florida Statutes, signs adjacent to interstate highways and federal-aid primary roads are only authorized in commercial, industrial zoned or un-zoned areas. These signs are therefore not in conformance with Section 479.111, Florida Statutes, and are non- conforming signs. When initially permitted, the height from the ground to the bottom of the sign (referred to as "Height Above Ground Level" or "HAGL") for each of Petitioner's four signs was ten feet or less. The overall height of the signs from the ground to the top of the sign ranged from 34 to 37 feet. Respondent erected a sound attenuation barrier (soundwall) along Interstate 4 in Polk County, Florida. As a result, the signs were blocked from view by passing motorists. In August 2006, without seeking the permission of Respondent, Petitioner raised the HAGL of the four signs to a height of 18 to 23 feet above ground level to allow the signs to remain visible over the soundwall. In September 2007, Respondent issued Notices of Intent to Revoke Petitioner's permits for violations of Florida Administrative Code Rule 14-10.007(2). Previously, in 1972, an agreement was entered into between the State of Florida and the United States Department of Transportation to implement and carry out the Highway Beautification Act (HBA) by controlling outdoor advertising signs located along Interstates and federal-aid primary highways. One of the purposes stated in the 1972 Agreement, was to allow Florida "to remain eligible to receive the full amount of all Federal-aid highway funds." In accordance with the Agreement, a determination that Florida failed to maintain effective control of outdoor advertising could result in a 10 percent reduction in federal highway funds. Florida Administrative Code Rule 14-10.007 was primarily drawn from the federal regulation language in 23 CFR 750.707, in effect since 1973, which provides as to non- conforming signs: (5) The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate non-conforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In November 2007, after receiving the Notices of Intent to Revoke Permits, Petitioner filed a Petition for Variance from Respondent to authorize the raising of these four signs blocked by a noise attenuation barrier. Thereafter, Respondent notified the Division Administrator for the Federal Highway Administration (FHWA) that a request for a variance had been received from Petitioner. By letter dated January 7, 2008, FHWA was asked (1) if it had developed any minimum criteria as to when a substantial change had occurred to a non-conforming sign as prohibited by federal regulations and (2) if no minimum criteria were established, whether a variance from an existing rule could be granted to allow a non-conforming sign to be increased in height as minimally necessary to be seen over a noise attenuation barrier. By letter dated February 5, 2008, FHWA responded that "a minimum Federal criteria has not been established," and "an increase in height is considered an expansion or improvement, which is not allowed for non-conforming signs." The letter concluded: To summarize, the HBA and its implementing regulations do not permit the adjustment of a non-conforming sign where action by the State transportation agency obstructs the visibility of the sign from the highway. As such, the FHWA would expect FDOT to deny the request for a variance from the provisions of Florida Administrative Code Rule 14- 10.007(2). FHWA's February 2008, correspondence was not its first attempt to address modifications to non-conforming signs. By letter dated June 15, 2000, FHWA informed the Florida Department of Transportation that non-conforming signs were not permitted to be raised to be seen over a noise wall, stating: Federal regulations require that non- conforming signs must remain substantially the same as they are on the effective date of the State law or regulations enacted to control them. FDOT is required to develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In this instance, we believe raising the sign above the wall would constitute a substantial change and appreciate that FDOT has come to the same conclusion. In September 2000, Respondent asked FHWA if non- conforming signs could be reduced in size or height when required by local ordinance. FHWA agreed to allow a reduction in height for non-conforming signs, if required by local ordinances. Later in 2000, FHWA also authorized the addition of catwalks or other fall-protection devices to non-conforming signs provided such addition does not increase the structural integrity of the sign or prolong the life of the sign. Respondent's rules were amended accordingly to allow non- conforming signs to be reduced in size when required by a local ordinance and catwalks and other fall protection devices to be added provided they did not increase the signs structural integrity. Fla. Admin. Code R. 14-10.007(a)(2), and (2)(b)(1). In December 2003, Respondent sought FHWA concurrence on amending Rule 14-10.007 to allow sign owners to submit a request to raise a non-conforming sign when a noise attenuation barrier screens or blocks the sign. The text of the proposed rule provided that any requests approved by Respondent would be forwarded to FHWA for final acceptance. In March 2005, FHWA responded through a memorandum providing: "Guidance on Adjustment of Non-Conforming Outdoor Advertising Signs." As background, the memorandum noted: With the broader use of noise walls around the country, the conflict between HBA prohibition against substantial improvement of non-conforming signs and sign owners' demands to maintain sign visibility is arising with increasing frequency. In analysis and guidance, the memorandum stated: Current FHWA regulations permit a non- conforming sign to remain "at its particular location for the duration of its normal life subject to customary maintenance." 23 CFR 750.707(c). The intent of the HBA is to permit a non-conforming sign to continue in place until it is destroyed, abandoned, or discontinued, or is removed by the State (which can use 75 percent Federal funding for the removal of the sign). A non- conforming sign must "remain substantially the same as it was on the effective date of the State law or regulations" adopted to implement the HBA. 23 CFR 750.707(d)(5). A height increase is an expansion and improvement of a sign. In addition, increasing sign height to clear a noise wall typically will require new structural measures, such as a monopole design, that would be inconsistent with the concept of limiting non-conforming signs to the duration of their normal lives. The memorandum concluded with the admonition: "If a State fails to comply with the non-conforming sign provisions of the HBA, it will become necessary to evaluate whether the State is maintaining effective control." On February 25, 2008, Respondent entered an Order Denying Petitioner's Petition for Variance or Waiver. The Petition to Determine the Invalidity of an Existing Rule followed on March 20, 2008.
Findings Of Fact The sign which is the subject of the DOT's Notice Number 10C KP 1996 093 is located alongside U. S. Highway 41 in Land O'Lakes, Pasco County, Florida. The sign advertises "Larry's Deli," and it is erected on a metal pole. At the location of the Petitioner's sign, U. S. Highway 41 is a federal-aid primary highway. At the location of the Petitioner's sign, the right-of-way of U. S. Highway 41 extends approximately 50 feet from the centerline of the roadway in the direction of the Petitioner's sign. The sign is approximately five feet within the right-of-way. The Petitioner's sign was not removed within ten days of the DOT's Notice Number 10C KP 1996 093.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order: (1) finding the Petitioner's sign in violation of Section 479.105, Fla. Stat. (1995); and (2) fining the Petitioner $75, plus the DOT's cost of removing the sign. RECOMMENDED this 28th day of October, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Lawrence R. Castro Larry's Deli Post Office Box 955 Land O'Lakes, Florida 34649 Andrea V. Smart Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issues to be resolved in this proceeding is whether a bill board (sign) bearing permit number BB058 (Tag BB058) was illegally modified as envisioned in Florida Administrative Code Rule 14-10.007(2), by having more than 50 percent of its materials replaced within a 24-month period and thus whether the permit for the billboard should be revoked.
Findings Of Fact The Petitioner (Salter) is the owner and operator of an outdoor advertising sign structure, located on State Road 89 in Santa Rosa County, Florida. The sign is located approximately at .01 miles north of Metz Road. It is undisputed that the sign is a "non-conforming" sign and it is permitted with Tag Number BB058. Hurricane Dennis struck Santa Rosa County on July 10, 2005. It damaged the sign. Prior to the storm the structural components of the sign consisted of two poles in the ground, or ground supports, two vertical supports (2 x 6) four braces, and two horizontal stringers. Salter's initial damage assessment, done by Mr. David McCurdy, was that one pole had broken and that therefore only one pole or ground support needed to be replaced. It was later discovered that the second ground support pole needed to be replaced. The Petitioner ordered one new pole for a cost of $59.00 dollars. That pole was then cut into two pieces to replace both ground support poles for the sign. All other existing parts of the sign were re-used. No new lumber or other materials were purchased for repair of the sign. Exhibit R-9 in evidence shows that the existing plywood vertical supports (wooden sign board) clearly appears to be an original portion of the sign and not new material. The three 2 x 6 horizontal stringers also clearly are re-used lumber from the original sign. One of them has a yellow tag on the end, commonly attached to pressure treated lumber when it comes from the lumber yard. The picture of the original, damaged sign depicted in R-7 also has the yellow tag attached on the end of the 2 x 6 stringer. That fact, together with the weathered appearance of that 2 x 6 stringer, as well as the other two stringers, shows that they are original material from the original sign. The two vertical 2 x 6's appear to be original material as well. Respondent's Exhibit 9 is a photograph depicting the back of the repaired sign. The vertical 2 x 6 support on the left side of the sign, as depicted in photograph R-9, appears brighter or newer looking than the other 2 x 6 structural members. However, it has a visible edge which appears to show weathering. There are also several old nail holes in the board, as well as a bent nail protruding from the rear of the board between it and the plywood vertical support or face of the sign. It thus appears to be a used structural member as well. Additionally, the horizontal stringer and plywood board at the bottom of the sign, on which the name Salter is attached, is clearly a used portion of the original sign and not new material. On balance it appears quite clearly that the only new structural members of the repaired sign are the two new poles which were cut from the original pole purchased for $59.00 dollars. Thus, the Petitioner has established by preponderant, persuasive evidence, including the depicition of the photographs in evidence, that the sign was repaired with substantially less than 50 percent new materials. In essence, it is now a sign composed of the original materials simply being hung on two new poles. Moreover, for purposes of the rule cited below, concerning the definition of a "destroyed" sign, 50 percent of the ground support poles were destroyed (i.e. broken). Thus it could be deemed a destroyed sign. In that case, although the Department is not asserting revocation based upon the value of the materials used in the repair of the sign, the "Florida Construction Order" in evidence, together with the testimony of Mr. McCurdy and Mr. Crawley, establishes persuasively that less than 50 percent of the value of the materials in the sign before the storm damaged it, were replaced in the repair work or, (37 percent). Thus by either measure of the manner of repair, the preponderant, persuasive evidence shows that the sign was properly repaired with less than 50 percent by quantity of new structural materials added to the sign and with less than 50 percent by value of new materials used in the sign repair, when compared to the value of the structural materials and members in the sign immediately prior to the storm damage. In Summary, the Salter General Manager, David McCurdy, ordered one pole to repair the sign. He ordered no vertical supports, braces, or stringers for the repair effort. He oversaw the repairs himself and was at the site while the repairs were being made. The single pole was cut into two pieces so that two ground support poles were replaced. The materials shown lying on the ground in Exhibits R-6 and R-7, were otherwise re-assembled and re-hung on the new poles. Salter assessed the damage at 37 percent by the value measurement. The value of the structural materials in the sign prior to the storm damage was $157.00 dollars. The cost to repair the sign's structure immediately after the hurricane was $59.00, for purchase of the pole. Thus the replacement materials to effect the repair constituted 37 percent of the value of the materials prior to the damage and the only new material incorporated into the repair sign structure was the single, $59.00 pole cut into two pieces. Therefore, it has not been proven by preponderant evidence that the sign was illegally repaired.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Transportation finding that permit number BB058 for the subject sign structure should remain in effect. 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. COPIES FURNISHED: Laura Joyner Nye, Esquire Lindsay, Andrews, and Leonard, P.A. Post Office Box 586 Milton, Florida 32572 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0485 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Denver Stutler, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether Petitioner's outdoor advertising sign permit applications should be granted.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' Prehearing Stipulation (which contains a "Statement of Admitted Facts"),1 and the record as a whole, the following findings of fact are made: Petitioner's Signs On or after July 21, 1998, Petitioner filed outdoor advertising sign permit applications for two signs2 (Petitioner's Signs) located on property it owns on the west side of Interstate 95 (I-95) within 660 feet of the nearest edge of the right-of-way of I-95, one-half mile south of Northlake Boulevard, and north of Blue Heron Boulevard, in Palm Beach County, Florida. This area of I-95 has been a part of the interstate highway system since at least August of 1967. Palm Beach County is the local governmental entity with authority to adopt a comprehensive land use designation for the property on which Petitioner's Signs are located (Property). From the time the Signs were erected in 1987, through the present, the Property (on which Petitioner conducts no business activities) has been zoned or designated for residential, not predominantly commercial or industrial, use. Petitioner's Signs, each of which exceeds eight square feet in area, contain advertising messages for Petitioner. The messages can be read without visual aid by motorists of normal acuity traveling on I-95. Previously, the Signs indicated the Property was for sale, but they have not been used for such purpose since December 14, 1994. The Department denied Petitioner's permit applications because the Signs are located in an "unpermittable land use designation" inasmuch as the Property is designated for residential, not predominately commercial or industrial, use. Other Signs Subsequent to December 8, 1971, the effective date of Chapter 71-971, Laws of Florida,3 the Department has issued and/or renewed outdoor advertising sign permits for other signs located within 660 feet of the nearest edge of the interstate or federal-aid primary highway system, notwithstanding these signs' location in areas not designated primarily for commercial or industrial use. Signs Assigned Permit Numbers AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. Among these signs are six signs (three sign structures with two facings each) that, like Petitioner's Signs, are located on the west side of I-95, south of Northlake Boulevard and north of Blue Heron Boulevard, in an area designated for residential, not predominantly commercial or industrial, use. The Department has annually renewed the sign permits for these signs since at least 1973. The 1974 annual permit renewals are the earliest records the Department has for these signs. (The Department has neither an original, nor a copy of, the initial applications or the initial permits, for these signs.) The signs currently have the following permit numbers: AZ346-35, AZ347-35, AY935-35, AY936-35, AY937-35, and AY938-35. According to Palm Beach County Building records, these signs were all constructed before January 27, 1972, and four of the signs were constructed in the late 1960's (in or sometime after July of 1968). These signs are in the same location as when originally permitted, and that location has been zoned or designated for residential use since before the time the signs were constructed and permitted. Signs Assigned Permit Numbers AN661-35 and BG910-35 Two signs (one sign structure with two facings) located within 660 feet of the westerly right-of-way of I-95, south of Forest Hill Boulevard and north or Seventeenth Avenue North, in Palm Beach County, Florida, were permitted by the Department in August of 1984. This area of I-95 has been a part of the interstate highway system since at least April of 1976. The two signs were erected after August of 1984. They currently are assigned permit numbers AN661-35 and BG910-35. The initial outdoor advertising sign permit applications that were filed with the Department for these signs (in August of 1984), unlike the applications submitted by Petitioner in the instant case, indicated that the signs were to be located in an area that was "commercial or industrial zoned." On each application, the applicant "certif[ied] that the statements made and the information given in this application [were] true and correct." In accordance with the Department's standard operating procedure, a review of these applications was conducted by Department staff and the information contained therein, including that relating to the zoning of the area in which the signs were to be located, was determined to be accurate. Accordingly, the permits were issued. Based upon the evidence adduced at the final hearing in this case, it appears that, contrary to the determination made by the Department, the zoning information provided by the applicant was inaccurate inasmuch as the area in which the signs were to be located was actually (and still is) an unzoned residential area. Signs Assigned Permit Numbers AX549 and AX550 State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, has been part of the federal-aid primary system since at least January of 1973. There are two signs (one sign structure with two facings) that are located within 660 feet of the right-of-way of State Road 80 in Section 35, Township 43 South, Range 40 East, in Palm Beach County, Florida, in an area not designated for predominately commercial or industrial use (State Road 80 Signs). These signs currently are assigned permit numbers AX549 and AX550. The Department issued sign permits for the predecessors of the State Road 80 Signs (Predecessor Signs) on April 15, 1979. An examination of the initial outdoor advertising sign permit applications filed with the Department (in April of 1979) for the Predecessor Signs reveals that each application has the entry "8/67" in the space for showing the "date [the sign is] to be erected,"4 and has the handwritten notation, "grandfathered," on that portion of the application to be filled out by the Department. The Department uses the term "grandfathered" to refer to signs which existed legally prior to a change in the law rendering them nonconforming, but which, notwithstanding such change, are still treated as lawful (albeit nonconforming) signs. The Department has a policy of permitting or "grandfathering" signs that existed (in compliance with the then- existing law) prior to the effective date of the aforementioned January 27, 1972, agreement between the State of Florida and the United States Department of Transportation (which is referenced in Section 479.111(2), Florida Statutes), provided no changes are made to the signs. The State Road 80 Signs are in the same general location (but not the identical location) where the Predecessor Signs were located, and all of the property in that general location is now, and has been since before the Predecessor Signs were permitted, zoned or designated for some use other than commercial or industrial. In 1986, the property on which the Predecessor Signs were located was acquired (for $42,000.00, excluding attorney's fees and costs) by the Department as a result of a settlement reached by the Department and the property owner in an eminent domain proceeding. In recommending (in writing) that the Department settle the matter, the Department's trial attorney stated the following with respect to the Predecessor Signs: The settlement figure of $42,000.00 dollars is a reasonable Award in light of the real estate and severance damages. Due to the specific difficulties involved in this matter, for instance the importance of a particular type of advertising sign combined with the fact that this advertising sign was grandfathered in and since the sign has been put up, restrictions had occurred in Palm Beach County which would have prevented a similar sign from being put up. Accordingly all parties had to work within the constraints of the original sign location with slight adjustment and renovation in order to make effectively a new sign into a renovated sign for purposes of seeking whatever variance. As the trial attorney had suggested in his written recommendation, the Predecessor Signs, with the Department's approval, had been removed from their original location and reconstructed (in or about June of 1986) on a part of the property that was not subject to the eminent domain proceeding. Signs Along the Florida Turnpike State Road 91 (the Florida Turnpike) in Palm Beach County, Florida, was designated as a part of the National Highway System by the United States Congress on November 28, 1995. It thereupon was deemed by the Department to be a part of the federal-aid primary highway system in the state. Before November 28, 1995, starting at least as early as 1973, the Department had issued at least 95 sign permits for signs located in Palm Beach County, which were within 660 feet of the Florida Turnpike right-of-way and not located in areas zoned or designated for commercial or industrial use at the time the permits were issued. Many, or all, of these signs are still in areas not zoned or designated for commercial or industrial use. With the concurrence of the Federal Highway Administration, the Department did not require signs along the Florida Turnpike to meet the requirements applicable to signs located along federal-aid primary highway system roadways, provided a permit application for these signs was received by the Department prior to July 1, 1996. A sign located within 660 feet of the edge of the westerly right-of-way of the Florida Turnpike, south of Forest Hill Boulevard and north of Lake Worth Road (State Road 802), in Palm Beach County, Florida, was issued outdoor advertising sign permit number BM818 by the Department on May 28, 1996. The application for this permit had been received by the Department on May 8, 1996. At the time of the issuance of the permit, the sign was located in an area not zoned or designated for commercial or industrial use. The sign is presently in the same location, which continues to be not zoned or designated for commercial or industrial use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner's applications for outdoor advertising sign permits for his Signs. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 12th day of May, 1999.
Findings Of Fact Larry Brummitt owned a sign on U.S. 90 in Greenville, Florida advertising Country Corner for which he held a permit for seven or eight years. U.S. 90 is a federal-aid primary highway. Mr. Brummitt desired to rebuild and relocate this sign a short distance from its authorized location and, to insure he did things properly, sought advice both from the advertising sign inspectors at Lake City and from the State Administrator of the Outdoor Advertising Section in Tallahassee. At both places he was told that be could not get an application for a new sign approved until his existing sign was removed because the new sign would violate the spacing requirements of Rule 14D-10.06(b)3, Florida Administrative Code while the existing sign was up; that an application would not be accepted while the former sign was standing; that the policy of the Department, when conflicting interests desired to erect signs where only one could be erected, was the person whose application was first received would be approved. The Department's long-standing policy, which was memorialized in a memorandum to all District Outdoor Advertising Sign Administrators in 1978, is that where conflicting applications for signs are received, the first submitted will be approved. Relying upon this information, Petitioner prepared his application, removed the old sign, and at 10:00 a.m. on 2 June 1980 presented his application to Respondent for a permit to erect his replacement sign. On 24 March 1980 American Sign and Indicator Company first approached Respondent's sign inspector to inquire about erecting a time and temperature sign for the Bank of Greenville. They were told that a permit for such a sign could not be issued because it would be within 500 feet of the Country Corner sign and would violate the spacing requirements unless Brummit's sign was first moved. At 1400 hours on 2 June 1980 American Sign and Indicator Company presented an application at the Lake City Headquarters of Respondent for a permit to erect a time and temperature sign at approximately the same location earlier requested by Brummitt. In his letter of 11 June 1980 the District Administrator, Outdoor Advertising, in Lake City advised Mr. Brummitt that his application was being disapproved and of his right to petition for an administrative hearing within 14 days or the denial would become final. As reasons for denying the application the letter stated: The application indicates the proposed location would be within 500 feet if a proposed time and temperature display to be erected by the Bank of Greenville in the County of Madison. The Bank of Greenville has been dealing in good faith with the Department to erect this display since January 5th, 1980. After obtaining the necessary criteria and additional expenses accrued, the Department feels the bank should be allowed to erect the display, because we feel they were the first applicant. When questioned by the Hearing Officer how Respondent "reasoned" the bank's application was received prior to Petitioner's application, the District Sign Inspector acknowledged that he had discussed these applications with the Chief Right-of-Way Agent in District 2, Mr. Bielling, under whose supervision the Outdoor Advertising Section comes, that Mr. Bielling is his boss and tells him what to do (Tr. p. 24-25) and that as far as the sign inspector is concerned, Mr. Bielling has the prerogative to change DOT policy.
The Issue Whether Respondent's outdoor sign permit should be revoked because the original sign has been destroyed by an Act of God, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this controversy, Petitioner, Department of Transportation (DOT), seeks to revoke a permit (No. BP844) for an off-premise outdoor advertising sign owned by Respondent, National Advertising Company (Respondent), an entity now known as "Infinity Outdoor," on the grounds that the original sign was destroyed by a hurricane in October 1999, the sign has lost its nonconforming status, and Respondent cannot lawfully rebuild the structure. In response to these charges, Respondent contends that after the sign was damaged, unknown persons stole the damaged structural pieces that were going to be used in part to rebuild the sign. Under a theory first disclosed at hearing, Respondent went on to contend that if those materials were still available, it could qualify for a seldom, if ever, used exception found in Rule 14-10.007(1)(d), Florida Administrative Code, which would otherwise allow it to reconstruct the sign. That rule provides in part that a sign will not be considered destroyed if the owner can demonstrate that "the replacement material costs to reerect the sign would not exceed [fifty percent] of the value of the structural materials in the sign, immediately prior to destruction." Using that provision, Respondent argues that much of the sign's structure could have been rebuilt with the now- stolen materials, and the remaining "replacement material costs" would not exceed the threshold in the rule. The sign was erected in 1968 before spacing requirements for signs were first adopted in 1972; therefore, unless it is destroyed, the sign can continue to qualify for nonconforming status as long as it remains substantially the same as it was as of the date it became nonconforming. Because the sign is situated on U.S. Highway 1 in Brevard County, a federal-aid primary highway, and another permitted sign lies approximately 200 feet away, under current spacing requirements, a sign cannot be rebuilt on the same site. This is because current spacing requirements prohibit two signs from being closer than 1,000 feet apart on a federal-aid primary roadway. The sign in question is located adjacent to U.S. Highway 1, 0.341 miles north of Florida Memorial Gardens in Brevard County, Florida. In October 1999, Hurricane Irene tracked northward along the eastern coast of Florida causing extensive wind damage, including substantial damage to Respondent's sign. Photographs received in evidence as Petitioner's Composite Exhibit 3 show the condition of the sign on October 26, 1999, or shortly after it was damaged by the hurricane. Among other things, two of the five support poles (which were buried to a depth of eight feet) were "splintered" approximately two to three feet above ground level, while the other three were "knocked over" and "broken" at ground level. The wooden facing of the sign "had been knocked up against a pine tree" and the wooden plywood "panels [on which the sign message is printed] were split." The "stringers," whose numbers were variously described in the record as nine and sixteen, and which measure 2 x 4 x 20 feet and support the backside of the structure between the poles, were also damaged. The condition of the sign is corroborated by similar photographs taken on October 18 and 22, 1999, by a code enforcement officer of Brevard County. In the judgment of the DOT inspector who visited the site shortly after the hurricane, none of the damaged structural materials (poles and stringers) could be reused due to the amount of damage caused by the hurricane's winds. However, the inspector was unable to assign a replacement cost for any of those structural materials, or the replacement value of the sign immediately prior to its destruction. On an unknown date, but after the photographs were taken by DOT on October 26, 1999, Respondent's operations manager, Billy Nichols (Nichols), instructed a subcontracting crew to inspect each of the company's signs and to drop off at each sign location "what they thought we may have needed" to repair the signs. After inspecting the sign in question, the crew deposited five brand new poles at the site. Respondent takes the position that it always intended to use a combination of old and new materials, rather than all new materials, to repair the damaged sign. The date on which this decision was made by Respondent is not apparent in the record. In addition, despite a lack of clarity in the record, in its post-hearing filing, Respondent represents that the new poles were deposited at the site before the damaged materials were removed. However, it can be reasonably inferred from the evidence that based on the subcontractor's actions, Respondent originally intended to replace virtually the entire structure since five new poles were dropped off at the site of the sign; after a Citation was issued, Respondent apparently decided to reerect the sign under the theory proposed at hearing. Sometime after November 8, 1999, when DOT issued its Citation, Respondent maintains that much of the debris from the site, including the damaged poles and stringers, was unlawfully removed by unknown persons, resulting in Respondent being forced to rebuild the sign with all new materials. The new poles, however, were not removed and remained at the site. Because of the Citation, no work has occurred pending the outcome of this proceeding. In applying the terms of the rule relied upon by Respondent, DOT ascertains the cost of the sign and the replacement materials by utilizing cost data from retail stores, such as Home Depot or Lowe's, on a date as close to the date of destruction as is possible. In this case, that date would fall in September or October 1999. In addition, even if a sign owner decides to repair his sign with used or recycled materials, those materials would still be valued as if they were new. Further, only items such as supporting braces (stringers) or members of the sign structure (support poles) qualify as structural materials. This means that the sign facing would not be considered a structural component within the meaning of the rule. Finally, any old materials from the original sign that were reused would not be a part of the overall cost. Apart from the cost issue, in reconstructing the sign, the owner must return the sign to substantially the same configuration as before the damage. Thus, any change in the height or width of the sign facing, the number of feet that the sign sits above the ground, the structural safety of the sign, or the size of the replacement materials, might constitute a substantial change and prohibit reerection. In the case at bar, the testimony establishes that if Respondent proposes to change the height of the sign, the type of structural materials used, or the number of support poles, this would constitute a substantial change in the sign and disqualify Respondent from utilizing the exception in the rule. Although the rule does not specifically require such information, to prove that materials were stolen by unknown persons, historically DOT has required that the owner submit a police report confirming that materials were stolen. In this case, no police report was ever filed by Respondent, nor did it file a claim with its insurance company for the value of the materials allegedly stolen. Respondent submitted cost data from three local "supplier[s]" confirming that the value of the structural components of the sign just prior to its being damaged was not greater than $1202.00. This figure was derived by taking the cost of five new poles at $202.00 per pole, or $1010.00, and sixteen new stringers at a cost of $12.00 per stringer, or $192.00. Respondent's suggestion that the cost of plywood for the new sign facing ($636.00) should also be counted as a structural material has been rejected since that component does not qualify as such a material under the rule. Respondent's operation supervisor (Nichols) offered two alternatives for repairing the sign. First, he suggested that by lowering the structure below its previous height, he could reerect the sign using only two new poles. This alternative, however, would substantially change the sign's configuration and violate the terms of the rule. Second, in order to keep the sign at its original height, Nichols stated that he would purchase three new poles and "stub" two of the damaged poles by adding two more stringers. The second option would cost only $630.00, but under this alternative, the value of the replacement materials would exceed fifty percent of the cost of the structure ($1202.00) just prior to the sign being damaged. Then, too, the record shows that by making this type of repair, the sign facing would be weaker, making it less safe; its wind load would be changed; and the sign height would be lower. Thus, these modifications would constitute a substantial change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order confirming that the outdoor advertising sign maintained by National Advertising Company under Permit No. BP844 has been destroyed, is nonconforming, and cannot be reerected. The permit should also be revoked. DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 day 12th of May, 2000. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation Attn: James C. Myers, Clerk of Agency Proceedings 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, Elgie Products (Elgie), is a partnership whose general partner is Richard J. Connolly, Sr. The mailing address of the business is 3000 Southwest 26th Terrace, Fort Lauderdale, Florida. At the present time, Connolly and his wife are engaged in the business of raising bees, making draperies and installing plexiglass under the name of Elgie Products. They also reside at the same location. Elgie's property consists of slightly more than four acres and lies one block south of State Road 84 and two blocks west of Interstate 95 in a small unincorporated pocket of Broward County, Florida. It is less than one-half mile from the Fort Lauderdale-Hollywood International Airport. The area is zoned M1 (light industrial, small manufacturing) and has only a few residential dwellings in the area including that of petitioner. A metal dump yard for wrecked automobiles lies just east of petitioner's property, a Days Inn Motel is on its north side, and DOT construction material and equipment associated with Interstate 595 lie to its south. By its application, petitioner seeks to place an outdoor sign on its property. The sign will be leased to an air carrier, and the revenues derived therefrom used to supplement the Connolly's income. After reviewing the application, respondent, Department of Transportation (DOT), issued proposed agency action on May 21, 1986 denying the application on the ground the sign would be within 500 feet of a restricted interchange. The denial prompted the instant proceeding. Through unknown and perhaps unfortunate circumstances, DOT decided to locate and construct Interstate 595 on an east-west alignment less than 1000 feet south of petitioner's property. In fact, the entrance ramp to I-595 will be situated less than 500 feet from the proposed site of petitioner's sign. Moreover, the sign will be visible to traffic using I-595. It is also located within 660 feet of I-595 right-of-way. Such a placement of the sign is impermissible under DOT's rules and governing statutes. Petitioner contends that DOT made an exception to its rules almost seven years ago when it approved an application filed by 3-M National Advertising Company to place an outdoor advertising sign at the intersection of State Road 84 and I-95 even though the sign was less than 150 feet from I-95 and was visible to traffic using that highway. In this regard, a DOT outdoor sign administrator acknowledged that he may have been in error when he approved the application in late 1979. However, the City of Davie has subsequently annexed the area where 3-M's sign is located, and 3-M is now exempt from DOT enforcement action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Elgie Products be DENIED. DONE and ORDERED this 9th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of September, 1986.
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.
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 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.
