06-003282 Lamar South Florida vs. Department Of Transportation Status: Closed Recommended Order on Monday, February 26, 2007.

Summary: Recommend upholding the Notice of Intent to Revoke Sign Permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR SOUTH FLORIDA , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3282

) 06 - 043

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMENDED ORD ER

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 (DOAH).

APPEARANCES

For Petitioner: Gerald S. Liv ingston, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Flor ida 32302 - 2095

For Respondent: J. Ann Cowles, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 3 2399 - 0458

STATEMENT OF 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

Administrative Hearings. On May 25, 2006 , the case was closed

at DOAH , and the Petition was again referred to DOAH on

August 31 , 2006 . The case was set for hearing on September 22 ,

2006; re - scheduled for hearing on November 28 , 2006; and the n

the hearing was fi nally held on January 12, 2007.

At the final hearing, the parties stipulated to

Petitioner's E xhibits 1 through 7, Respondent's E xhibits 1

through 10, and a number of pertinent facts , which will be

included in the findings of fact below . Lamar called one

witness: Benjamin N. Henry, a real estate manager for Lamar.

The Department called two witnesses: Lynn Holschuh, an outdoor

advertising administrator with DOT , and Mark Johnson, a si gn

inspector for DOT Region 5.

At the close of the evidentiary portion of the final

hearing, the parties requested, and were allowed, 2 0 days from

the filing of the hearing transcript within which to file their

respective proposed recommended orders. A one - volume T ranscript

of the hearing was filed on Jan uary 29, 2007 . Both parties

filed P roposed R ecommended O rders containing proposed findings

of fact and conclusions of law. The parties' proposals have

been carefully considered during the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Lamar is a company which owns and maintains hundreds of

road - side signs or billboards within the State of Florida. One

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

located on U . S . Highway 27 approximately .034 miles north of

Rock Road in Palm Beach County. The Sign is assigned Permit

No. 14103.

2. The Sign was damaged on or about August 13, 2004 ,

during one of that year's major storms, Hurricane Charley.

Lamar was hit hard by the 2004 storms and had to repair

literally hundreds of signs which e xisted under DOT permits.

The company had to rely upon whatever contractors and laborers

were available, drawing crews from several differe nt states to

meet their needs.

3. At the time it was damaged, the Sign was a

nonconforming sign as that term is def ined in S ubs ection

479.01(14), Florida Statutes. The Sign was of wood construction

with a single facing, was 24 feet tall, unlighted, and had a

height above ground level (HAGL) of 14 feet. The Sign had been

constructed in 1965 and held Tag Nos. CD228 and /or BT364. There

were seven wooden support posts holding the sign in place.

4. The construction crews hired by Lamar repaired the

sign, but during the repair mistakenly lowered the HAGL from 14

feet to eight feet seven inches . Also, the seven small sup port

posts were replaced with four larger posts. The HAGL was

apparently reduced in response to a change in the kinds of crop

being grown in the field abutting the sign location. Whereas

the field had formerly been used to grow sugar cane (which grows

to a height of five or six feet), after the hurricane the field

was planted with green beans (which grow close to the ground).

5. The Department's primary inspector for the area where

the Sign is located is Mark Johnson. He has inspected the Sign

on at l east three occasions officially, but has noticed the S ign

regularly as it is on his route to the place he goes fishing.

He has been seeing the Sign for 15 or 16 years, but it has been

within his area of official responsibility for about six years.

6. J ohnson first inspected the S ign on or about

February 24, 2004. He took an unofficial measurement using his

own height. Later, Johnson twice measured the sign using a

surveyor's rod. The heights he recorded using the measurement

tool were eight feet sev en inches on December 22, 2006 , and

eight feet seven inches on January 10, 2007. He relied upon the

DOT database to ascertain that the HAGL had changed from its

authorized height.

7. DOT conducted a statewide inventory of signs 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 ; a nd other identifying information about the

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

years, but genera lly is done on an annual basis.

8. DOT served Lamar with a Notice of Intent to Revoke Sign

Permit dated March 21, 2006. The Notice all eged the Sign had

been structurally changed 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

violation.

9. The Sign did not increase in height as a re sult of

Lamar's post - hurricane repairs, nor did the sign change from

wood to metal or other such modification as discussed in the

rule. Rather, the Sign was reduced in height , and the number of

support posts was decreased.

10. The Notice provided it wou ld become final in 30 days

unless Lamar either (1) provided 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 He aring.

11. The Notice did not specify exactly what changes to the

Sign constituted a violation of Department rules. During the

discovery phase of this action, Lamar ascertained that the

lowering of the HAGL and the reduction of posts from seven to

four w ere the violations at issue. This information came to

Lamar late in December 2006.

12. Since that time, Lamar has hired a contractor to

revise the earlier repairs to the sign. The contractor has been

directed to raise the HAGL back to 14 feet and to add three more

support posts. As of the date of the final hearing, that work

had not been concluded, but a contract had been entered into to

complete the repairs.

CONCLUSIONS OF LAW

13. D O AH has jurisdiction over the parties to and the

subject matter of thi s proceeding pursuant to Section 120.569

and Subsection 120.57(1), Florida Statutes.

14. Proceedings under the jurisdiction of DOAH are de novo

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

15. The control and regulation of roadside signs in the

s tate falls wit hin the purview of the Department as set forth in

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

forth at Se ction 479.02, Florida Statutes.

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

authority under Chapter 479 , Florida Statutes (an d 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:

(1) A nonconforming sign must remain

substantially the same as it was as of the

date it became nonconforming.

(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 s ign 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

modifications which do not constitute

reasonable repair or maintenance, and which

constitute substantial changes to a

nonconforming sign that w ill result in the

loss of noncon forming status:

(a) Modification that changes the

structure of, or the type of structure 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,

* * *

(c) Modification that enhances the

visibility of the sign's message, or the

period of time that the message is visible;

(d) Modifi cation that adds automatic

changeable faces; or

(e) Modification that adds artificial

lighting, or changes the existing lighting

such that the illumination to the sign

facing is substantially increased.

* * *

(6) A nonconforming sign may c ontinue to

exist so long as it is not destroyed,

abandoned, or discontinued. . . .

17. 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

departm ent, corrects such false or

misleading information and complies with the

provisions of this 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, a pply to the department for an

administrative hearing pursuant to chapter

120. If a timely 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 proper notice of appeal shall

operate to stay the revocation until the

department's action is upheld.

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

was rebu ilt after it was damaged. The reconstruction resulted

in a sign that was somewhat different from the sign which

existed at the time it became nonconforming.

19. DOT's notification to Lamar , concerning the violation ,

was not specific in nature, but Lamar timely availed itself of

the right to contest the Notice in order to determine whether it

agreed with DOT that a violation had occurred. The cited rule

provides only a general description of some items that might be

considered improper modifications of th e S ign. It does not list

all such modifications nor does it provide a detailed

description of changes which might constitute a modification.

20. There is some question whether the change in the

number of poles from seven smaller poles to four larger pole s is

a change. But S ubsection (6)(a) 2.c . of Florida Administrative

Code Rule 14 - 10.007 states in relevant part: "The repairs to

the signs shall be with like materials, both in type and size,

and shall be those reasonably necessary to permanently repair

t he sign in a manner normally accomplished by the industry in

that area." DOT's interpretation of this section to preclude

replacement of seven smaller poles with four larger poles is

reasonable. Further, although the HAGL was lowered rather than

raised, DOT is within its rights to cite Lamar for that

unauthorized change in the Sign.

21. DOT has met its burden of proof and has provided

sufficient evidence to support its Notice of Intent to Revoke

Sign Permit.

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 upholding the Notice o f Intent to Revoke Sign

Permit.

DONE AND ENTERED this 2 6th day of February , 2007 , in

Tallahassee, Leon County, Florid a.

S

R. BRUCE MCKIBBEN

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th 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 Floo r

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

De partment of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Stephanie Kopelousos, Interim Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahas see, 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.