06-003281 Lamar South Florida vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, February 20, 2007.

Summary: Respondent should rescind its Notice of Intent to Revoke Sign Permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR SOUTH FLORIDA , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3281

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 12, 2007, in Tallahassee, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

For Re spondent: J. Ann Cowles, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT O F THE ISSUE

The issue in this case is whether the Department of

Transportation's Notice of Intent to Revoke Sign Permit should

be upheld pursuant to Section 479.04, Florida Statutes (2006). 1

PRELIMINARY STATEMENT

On or about March 21, 2006, the Department of

Transportation ("DOT" or the "Department") issued a Notice of

Intent to Revoke Sign Permit to Lamar South Florida ("Lamar").

In response, Lamar filed a Petition for Formal Administrative

Hearing , which was duly - transferred to the Division of

Administra tive Hearings. The final hearing was continued one

time upon motion of Petitioner and was finally conducted on

January 12, 2007. At the commencement of the final hearing, the

parties stipulated to admission of Petitioner's E xhibits 1

through 7 and Respon dent's E xhibits 1 through 14. Respondent

called one witness: Lynn Holschuh, the s tate o utdoor

a dvertising a dministrator with DOT. No witnesses were called by

Petitioner.

At the close of the evidentiary portion of the final

hearing, the parties requested and were allowed up to 15 days

from the filing of the hearing transcript to file their

respective proposed recommended orders. A one - volume T ranscript

of the hearing was filed on January 26, 2007 . Petitioner timely

filed its P roposed R ecommended O rder o n February 9, 2007.

Respondent's P roposed R ecommended O rder was filed on

February 13 , 2007 , but was given consideration because it was

only one day late , and the Recommended Order had not been

finalized at that point.

FINDINGS OF FACT

1. Lamar is a comp any which owns and maintains road - side

signs, signboards or billboards within the State of Florida.

One such billboard (referred to hereinafter as the "Sign") is

located on U . S . Highway 41 approximately three - tenths of a mile

north of Tuckers B ou l e v ar d in Charlotte County. The Sign was

given Permit Number 5202 by DOT. This Sign is a nonconforming

sign, meaning that it was lawfully erected but does not comply

with state or local laws enacted after it was built .

2. DOT conducted a statewide inventory of s igns in 1998

and established a database for use in monitoring nonconforming

signs in the future. The database includes the type of sign ;

its date and method of construction ; the height, including the

Height Above Ground Level (HAGL) ; its location ; whether the sign

is lighted or not ; and other identifying information about the

sign. The inventory of signs is updated at least every two

years, but generally is done on an annual basis.

3. On August 13, 2004 , during Hurricane Charley, the Sign

sustained damag e , which required certain repairs. Repairs of

nonconforming signs is allowed, but signs are not supposed to be

structurally changed during the repair. Petitioner undertook a

repair of the Sign.

4. During the course of the repairs, the Sign underwent

two changes . One, t he HAGL of the sign went from two feet to

approximately five feet. HAGL is the distance from the ground

to the bottom of the lowest sign face. Two, t he Sign was

repaired using four support poles instead of the three poles it

had when it became non conforming.

5. Based upon information contained in its database, DOT

concluded that the repairs resulted in unauthorized structural

changes. DOT issued a Notice of Intent to Revoke Sign Permit

(the "Notice") on March 21, 2006. The Notice alleg ed the Sign

had been structurally altered and was no longer the same as when

it had become nonconforming. The Notice cited Florida

Administrative Code Rule 14 - 10.007(2)(a) as the basis for the

intent to revoke. That R ule relates to modifications of a sig n

"such as conversion of a back - to - back sign to V type, or

conversion of a wooden sign structure to a metal

structure . . ." .

6. The Notice included a statement that revocation of the

sign permit would become final in 30 days , unless Lamar either :

(1) p rovided information to DOT sufficient to resolve the issue

or (2) requested an administrative hearing. Lamar availed

itself of the second option and , timely , filed a Petition for

Formal Administrative Hearing.

7. The DOT Notice did not specify exactly wh ich changes to

the Sign constituted a violation of Department rules. It merely

cited to Florida Administrative Code Rule 14 - 10.007(2)(a).

During the discovery phase of this action, Lamar ascertained

that the violations were: ( 1 ) t he HAGL had been raised from two

feet to over five feet; and ( 2 ) t here were four support posts

instead of the original three. This information was discovered

by Lamar as a result of interrogatory responses from DOT. The

interrogatories had been propounded on

September 22, 200 6 , but were not answered until December 13,

20 06, some 82 days later.

8. Upon determining the exact nature of the violation,

Lamar undertook to have the repairs corrected so that the Sign

was set at the correct HAGL of two feet and one support post was

re moved. The correcting construction work was accomplished

within seven days of discovering the nature of DOT's complaint.

As of the date of the final hearing, the S ign had been returned

to its condition as of the date it became nonconforming.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings (DOAH) has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes. Proceedings under the jurisdiction of DOAH

are de novo in nature. § 120.57(1)(k), Fla . Stat.

10. The control and regulation of roadside signs in the

s tate fall within the purview of the Department , as set forth in

Chapter 479, Florida Statutes. DOT's specific duties are set

forth at Section 479.02, Florida Statutes.

11. One of the rules promulgated pursuant to DOT's

authority under Chapter 479 , Florida Statutes (and relied upon

by DOT as the basis for issuance of the Notice in this case) , is

Florida Administrative Code Rule 14 - 10.007, which states in

pertinent part:

(1) A nonconforming sign must remain

substantially the same as it was as of the

date it became nonco n forming.

(2) Reasonable repair and maintenance of

nonconforming signs, including change of

advertising message, is permitted and is not

a change which would terminate the

nonconforming status. Reasonable repair and

maintenance means the work necessary to keep

the sign structure in a state of good

repair, including the replacement in kind of

materials in the sign structure. Where the

replacement of materials is involved, such

replacement may not exceed 50% of the

structural materials in the sign within any

24 month period. "Structural materials" are

defined in sub - subparagraph (6)(a)2.a.

below. The following are example s of

modif ications which do not constitute

reasonable repair or maintenance, and which

constitute substantial changes to a

nonconforming sign that will result in th e

loss of nonconforming status:

(a) Modification that changes the

structure of, or the type of str ucture of,

the sign, such as conversion of a back - to -

back sign to a V - type, or conversion of a

wooden sign structure to a metal structure;

* * *

(b) Modification that changes the area of

the sign facing or the HAGL of the sign,

however:

12. Section 479.08, Florida Statutes, reads:

The department has the authority to deny

or revoke any permit requested or granted

under this chapter in any case in which it

determines that the application for the

permit contains knowingly false or

misleading information or that the permittee

has violated any of the provisions of this

chapter, unless such permittee, within 30

days after the receipt of notice by the

department, corrects such false or

misleading information and complies with the

provisions of thi s chapter. Any person

aggrieved by any action of the department in

denying or revoking a permit under this

chapter may, within 30 days after receipt

of the notice, apply to the department for

an administrative hearing pursuant to

chapter 120. If a timel y request for

hearing has been filed and the department

issues a final order revoking a permit, such

revocation shall be effective 30 days after

the date of rendition. Except for

department action pursuant to s. 479.107(1),

the filing of a timely and prop er notice of

appeal shall operate to stay the revocation

until the department's action is upheld.

13. It is clear from the stipulated evidence that the Sign

was rebuilt after it was damaged. The reconstruction resulted

in a sign that was somewhat differ ent from the sign which

existed at the time it became nonconforming.

14. DOT's notification to Lamar did not specify the

alleged violations other than to cite to a departmental rule

provision. As it turns out, the provision cited in the Notice

( Fla . Admi n . Code R . 14 - 10.007(1)(a)) was not the correct

provision because it identified a change that had not actually

occurred. Rather, the changes which Petitioner made to its sign

were governed by a different rule provision ( Fla . Admin . Code

R . 14 - 10.007(1)(b )). Thus, the Notice of Intent to Revoke Sign

Permit was not sufficient to put Lamar on notice as to the

alleged violations.

15. The 30 - day period for correcting violations of state

law ( See § 479.08, Fla . Stat . , as set forth above) would not

commence ru nning until Petitioner received notice. It is clear

from the facts of this case that Petitioner only received notice

during the discovery phase of this case. Therefore, once it

received sufficient notice, it had 30 days to correc t the

violations , and it did so.

16. DOT's interpretation of the statute is that the Notice

did not give Lamar a 30 - day opportunity to correct its improper

repairs. That would, as stated in Lyman Walker,III v. State of

Florida, Department of Transportation , 366 So. 2d 96, 99

(F la. 1st DCA 1979), render Lamar's right to notice a nullity.

In the alternative, DOT argues that Lamar should have known what

the violation was despite what was stated on the Notice. There

is no requirement in law for a person to guess what an agency is

thinking when it is sues such a notice.

17. The general rule is that the party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue. Florida Department of Transportation v. J.W.C.

Company , 396 So. 2d 778 (Fla. 1st D CA 1981).

18. It is clear that within 30 days of receiving

sufficient notice of the alleged violation of law, the Sign had

been repaired in accordance with its condition as of the date it

became nonconforming. Respondent has not met its burden of

proof t o establish non conformity of the Sign as of the date of

the final hearing.

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 withdrawing its N otice of Intent to Revoke

Sign Permit.

DONE AND ENTERED this 20th day of February , 2007 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 20th day of February, 2007 .

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2006), unless otherwise indicated.

COPIES FURNISHED :

J. Ann Cowles, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Gerald S. Livingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

H aydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Stephanie K opelousos, Interim Secretary

Department of Transportation

Haydon Burns Building , Mail Station 57

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 this Recommended Order should be filed with the agency that

will issue the Final Order in this case.