02-004739 National Advertising Company vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, May 14, 2003.

Summary: Petitioner`s billboard blown down by storm; 50 percent of structural materials not replaced. Billboard not "destroyed" as per Rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL ADVERTISING COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4739

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on February 7, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: Gerald S. Li vingston, Esquire

Livingston & Reilly, P.A.

Post Office Box 2151

Orlando, Florida 32802

For Respondent: J. Ann Cowles, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

Whether the billboard structure owned by Petitioner,

National Advertising Company, located adjacent to U.S. 1/State

Road 5, at mile marker 87.5, City of Islamorada Village of

Islands, Islamorada, Monroe County, Florida, is in violation of

the provisions of Rule 14 - 10.007, Florida Administrative Code,

or Chapter 479, Florida Statutes.

PRE LIMINARY STATEMENT

On June 26, 2002, Respondent, Department of Transportation,

directed a Notice of Violation to Petitioner advising that

"[T]he nonconforming outdoor advertising sign referenced by the

permits listed above is in violation of Rule 14 - 10.007 , Florida

Administrative Code, for the reasons listed below:

14 - 10.007(2) No more than 50% of the

structural materials of a nonconforming sign

may be replaced within a 24 month period;

14 - 10.007(4) A nonconforming sign may not

be disassembled and re - erected at the same

location; and

14 - 10.007(6)(a) A destroyed nonconforming

sign may not be re - erected. "Destroyed"

means that 50% of the upright supports (for

a wooden sign) of the sign are damaged such

that replacement is necessary.

The Notice of Violation further advised, "it would appear that

your sign has lost its nonconforming status and is now illegal."

On July 15, 2002, Petitioner filed a petition with

Respondent seeking an administrative hearing appealing the final

agency action as a result of the Notice of Violation received by

Petitioner on July 3, 2002, regarding Petitioner's outdoor

advertising sign (billboard), which is located on U.S. 1 in the

City of Islamorada Village of Islands, Islamorada, Monroe

County, Florida.

On December 5, 200 2, Respondent forwarded the Petition to

the Division of Administrative Hearings requesting an

administrative hearing. On December 6, 2002, an Initial Order

was sent to both parties. On December 13, 2002, the case was

scheduled for final hearing on Februa ry 7, 2003, in Orlando,

Orange County, Florida.

The final hearing was conducted as scheduled on February 7,

2003. Respondent presented three witnesses, Lynn Holschuh, Mark

Johnson, and Charles Baldwin. Respondent offered seven

exhibits, which were receiv ed into evidence and marked

Respondent's Exhibits 1 through 7. Petitioner presented two

witnesses, John Harrison and Hector Rivera. Mr. Rivera was

qualified as an expert in construction, maintenance, repair and

cost of repair of billboards. Petitioner o ffered one exhibit,

which was received into evidence and marked Petitioner's

Exhibit 1.

The Transcript of Proceedings was filed on March 22, 2003.

On April 4, 2003, the parties jointly moved to extend the time

for filing proposed recommended orders; the motion was granted.

Both parties filed Proposed Recommended Orders, which were

thoughtfully considered by the undersigned Administrative Law

Judge.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses

presented and the entire record in th is proceeding, the

following findings of fact are made:

1. Petitioner is the owner and operator of an outdoor

advertising sign ("billboard") located adjacent to U.S. 1/State

Road 5, at mile marker 87.5, City of Islamorada Village of

Islands, Islamorada, M onroe County, Florida.

2. In the immediate area of where the billboard's

location, U.S. 1/State Road 5 is a U.S. Federal Aid Primary

Highway, over which Respondent has jurisdiction.

3. The billboard is permitted pursuant to state sign

permit numbers AS7 88 and AS789.

4. The billboard is 570 feet from the nearest permitted

billboard. Respondent considers the billboard to be

nonconforming because it is not in compliance with the current

spacing requirements on the Federal Aid Primary Highway System.

5. I n 1984, the spacing of billboards on Federal Aid

Primary Highways changed from 500 feet to 1,000 feet. When the

spacing requirements changed, there was a savings provision in

Subsection 479.07(9)(c), Florida Statutes (1984), that allowed

signs that were c onforming in 1984 did not become nonconforming

because of the change in the spacing requirement.

6. The billboard was permitted on August 26, 1986.

Petitioner's Application for Outdoor Advertising Sign Permit,

Tag No. AS788, indicates that the billboar d is "500" feet from

the nearest permitted sign and that the method of marking site

is that it was an "existing sign," which suggests that the

billboard existed prior to the subject permit. If the billboard

was built in 1986, it should not have been perm itted because the

spacing requirement in 1986 was 1,000 feet.

7. This permit information is based upon a document

produced as a result of a statewide billboard inventory prepared

by a subcontractor of Respondent. There were mistakes in the

statewide inve ntory. Tag numbers AS788 and AS789 could be

original tags or replacement tags.

8. The billboard was a ten - foot by 40 - foot structure with

a two - foot by 38 - foot A frame; five poles; and six stingers

horizontal made by two - foot by six - foot by 20 - foot lumber .

9. On July 21, 2001, a storm came through the City of

Islamorada Village of Islands, which caused the five vertical

poles that held the billboard erect to be broken. As the storm

blew through, the upper structure of the billboard was blown

over and res ted on the ground. The upper structure of the

billboard suffered little damage; importantly, the structural

members of the billboard, with the exception of the five

vertical poles, were intact and could be reused.

10. Petitioner was prevented from re - e recting the

billboard by the City of Islamorada Village of Islands. On

June 18, 2002, Petitioner and the City of Islamorada Village of

Islands entered into an agreement that allowed Petitioner to

remove the billboard and avoid a fine in the amount of $10 0.00

per day.

11. The value of the structural materials in the billboard

immediately prior to the July 21, 2001, storm was $1,353.60.

The cost of materials to repair the billboard immediately after

the July 21, 2001, storm was $536.50. The replacement materials

constitute 39.7 percent of the value of the materials in the

sign prior to the storm damage. The only new materials needed

to re - erect the billboard are the five vertical poles.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings ha s

jurisdiction of the parties and the subject matter. Sections

120.569 and 120.57, Florida Statutes.

13. Respondent has the burden of proof of establishing by

a preponderance of the evidence the allegations of its Notice of

Violation:

[T]he nonconforming outdoor advertising sign

referenced by the permits listed above is in

violation of s. [sic] 14 - 10.007, Florida

Administrative Code, for the reasons listed

below:

14 - 10.007(2) No more than 50% of the

structural materials of a nonconforming sign

may be replaced within a 24 month period;

14 - 10.007(4) A nonconforming sign may not

be disassembled and re - erected at the same

location;

14 - 10.007(6)(a) A destroyed nonconforming

sign may not be re - erected. "Destroyed"

means that 50% of the upright suppo rts (for

a wooden sign) of the sign are damaged such

that replacement is necessary.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981).

14. In the event Respondent establishes that the

nonconforming billboard was "destroyed," as defined in Rule 14 -

10.007(6)(a), Florida Administrative Code, Petitioner has the

burden of proof of establishing by a preponderance of the

evidence that it comes within the "exception" established in

Rule 14 - 10.007(6)(a)2, Florida Admi nistrative Code.

15. Rule 14 - 10.007(6)(a)2, Florida Administrative Code,

reads as follows:

2. If the permittee demonstrates that

the replacement materials cost to re - erect

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 cost to

re - erect the sign would not exceed 50% of

the value of the structural materials in the

sign:

a. Structural materials ar e all those

materials incorporated into the sign as

load - bearing parts, including vertical

supports, horizontal stringers, braces,

bracing wires, brackets, and catwalks.

Structural materials do not include the sign

face, any skirt, any electrical service, or

electric lighting, except in cases where

such items have been incorporated into the

sign as load - bearing parts.

b. The value of the structural materials

in the sign immediately prior to destruction

shall be based on the cost of all structural

mate rials 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

conditio ns.

c. 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 fro m a source

other than the sign itself, whether used,

recycled, or repaired, but shall not include

any material from the sign itself that is

repaired on - site. The repairs to the sign

shall be with like materials, both in type

and size, and shall be those r easonably

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

(6)(a)2.b.

16. Respondent successfully established that all five

poles that held the billboard erect were destroyed by the storm

and, therefore, met the definition of “destroyed” contemplated

by Rule 14 - 10.007(6)(a), Florida Administrative Code.

17. Petitioner successfully established that it met the

“exception” established in Ru le 14 - 10.007(6)(a)2, Florida

Administrative Code, as it clearly showed that the cost of

structural replacement materials did not exceed 50 percent of

the value of structural materials in the sign immediately prior

to the storm.

18. In 1984, the Florida le gislature enacted Subsection

479.07(9)(a), Florida Statutes (1984), which reads as follows:

A permit shall not be granted for any sign

for which a permit had not been granted by

the effective date of this act unless such

sign is located at least:

1. One thousand five hundred feet from

any other permitted sign on the same side of

the highway, if on an interstate highway.

2. One thousand feet from any other

permitted sign on the same side of the

highway, if on a federal - aid primary

highway.

19. At the same time the legislature extended the spacing

between billboards from 500 feet to 1000 feet, it passed the

following “saving” legislation in Subsection 479.07(9)(c),

Florida Statutes (1984):

Nothing in this subsection shall be

construed so as t o cause a sign which is

conforming on the effective date of this act

to become nonconforming.

20. The evidence presented leaves questions as to whether

or not the billboard is “nonconforming.” Had the billboard been

first erected in 1986, or between the effective date of the

legislation referenced in paragraph 18 and August 26, 1986 (the

permit date), it should not have been permitted as it was

570 feet from an existing sign and would not have met the

1000 feet minimum requirement of Subsection 479.07( 9)(a),

Florida Statutes (1984). The Application for Outdoor

Advertising Sign Permit, Tag No. AS788, indicates that the

billboard is “500” feet from the nearest permitted sign and

that the method of marking site is that it was an “existing

sign,” which su ggests that the billboard existed prior to the

1986 permit. One is left to conclude that the billboard existed

prior to the 1984 legislation and was permitted in 1986 in

accordance with Subsection 479.07(9)(c), Florida Statutes

(1984).

RECOMMENDATION

Base d on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Department of Transportation,

issue a final order rescinding its Notice of Violation and

allowing Petitioner, National Advertising Company, to re - erect

its billb oard at the same location and in the same configuration

as previously permitted.

DONE AND ENTERED this 14th day of May, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Ad ministrative 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 14th day of May, 2003.

COPIES FURNISHED :

J. Ann Cowles, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

Gerald S. Livingston, Esquire

Livingston & Reilly, P.A.

Post Office Box 215 1

Orlando, Florida 32802

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.