07-004732 Lamar Outdoor Advertising-Lakeland vs. Department Of Transportation Status: Closed Recommended Order on Thursday, February 21, 2008.

Summary: Respondent demonstrated that permits for nonconforming signs should be revoked, where the number of support poles was changed and the permittee failed to make corrections within the time alotted by notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR OUTDOOR ADVERTISING - )

LAKELAND , )

)

Petitioner , )

)

vs. ) Case Nos. 07 - 4732

) 07 - 4734

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 20, 2007, in Tallahassee, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings ("DOA H").

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 Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

At issue in these consolidated proceedings is whether the

permits for signs bearing tag numbers BT339, AE862, and AX116

should be revoked , pursuant to Section 479.08, Florida Statutes

(2007).

PRELIMINARY STATEMENT

On M arch 21, 2006, the Department of Transportation (the

"Department") issued two Notices of Intent to Revoke Sign Permit

("Notices") to Lamar Advertising - Lakeland ("Lamar"), alleging

that nonconforming signs bearing tag numbers BT339, AE862, and

AX116 had b een structurally changed and were no longer

substantially the same as they were on the date they became

nonconforming, in violation of Florida Administrative Code

Rule 14 - 10.007(2)(a). The Department issued revised Notices on

July 31, 2007. Lamar timely filed petitions for formal

administrative hearings to contest the Notices. The petition

challenging the Notice regarding tag numbers BT339 and AE862 was

assigned DOAH Case No. 07 - 4732. The petition challenging the

Notice regarding tag number AX116 was a ssigned DOAH Case

No. 07 - 4734. Lamar's unopposed motion to consolidate the cases

was granted by order dated December 17, 2007.

At the hearing, Lamar presented the testimony of Dave

Henry, its real estate leasing manager. Lamar's Exhibits 1

through 3 wer e admitted into evidence. The Department presented

the telephonic testimony of its outdoor advertising inspectors

Steve Leslie and Mark Johnson, and the in - person testimony of

Lynn Holschuh, the Department's state outdoor advertising

administrator. The D epartment's Exhibits 1 through 17 were

admitted into evidence.

At the close of the evidentiary portion of the final

hearing, the parties requested and were allowed 20 days from the

filing of the hearing transcript within which to file proposed

recommended orders. The one - volume hearing T ranscript was filed

on January 7, 2008. The Department filed its P roposed

R ecommended O rder on January 28, 2008, and Lamar filed its

P roposed R ecommended O rder on January 29, 2008. Neither party

objected to the lateness o f the other's filing, and therefore

both parties proposed recommended orders have been accepted and

considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. Lamar owns and maintains outdoor advertising signs in

the State of Florida . Pursuant to the permitting requirements

of Section 479.07, Florida Statutes, the Department issues

permits and tags to outdoor advertising signs along interstate

and federal - aid primary highway systems. Signs that met

permitting criteria at the time th ey were erected , but that do

not comply with subsequently enacted laws or that no longer

comply with the law due to changed conditions , may nonetheless

be permitted and maintained as "nonconforming signs." 1

2. In compliance with S ubs ection 479.02(8), Flor ida

Statutes, the Department in 1997 and 1998 conducted a statewide

inventory of all signs on the state interstate and federal - aid

primary highway systems. This inventory became the database for

all signs permitted at the time it was completed. The

Depar tment sent the inventory results to all sign owners in

order to provide them an opportunity to confirm or challenge the

accuracy of the results.

3. The database includes the location of the sign; the

dates the sign was permitted and constructed; its date and

method of construction; the height, including the Height Above

Ground Level ("HAGL"); the height, width, and square footage of

the sign facing; the number and type of support structures used;

whether the sign is lighted or not; the status of the sign a s a

conforming, nonconforming, or illegal sign; and other

identifying information.

4. S ubs ection 479.02(8), Florida Statutes, provides that

the inventory of signs is to be updated no less than every two

years. The Department in fact performs the update e very year.

5. In 2004, a series of hurricanes passed through Florida,

destroying or damaging thousands of outdoor advertising signs.

The Department issued notices of intent to revoke the permits of

nonconforming signs that appeared to have been destroyed by the

storms.

6. In February 2005, the Department and Lamar entered into

a settlement agreement that allowed Lamar to rebuild some signs

and required the removal of others. The signs at issue in this

proceeding were among those allowed to remain standi ng with

repair. As to these signs, the settlement agreement provided:

The outdoor advertising signs referenced

above remain lawfully erected nonconforming

signs and LAMAR may repair said signs,

provided that said repair shall be at the

pre - storm location and to pre - storm

specifications, including configuration,

type of materials, height, size, area of

face and lighting. Exceptions to pre - storm

specifications will be allowed to the extent

required to comply with local building

codes. Such repairs shall be completed

within 270 days of entry of a Final Order

approving this Joint Stipulation of

Settlement.

The referenced Final Order was entered on March 15, 2005.

7. The Department issued permit numbers 13778 and 137790

and tag numbers BT339 (replaced by tag number CF221 at the time

of the hearing) and AE862 to a nonconforming, back - to - back sign

located along U.S. 1 in Martin County, .08 miles north of

Constitution Boulevard in Hobe Sound. At the time of the 1997

inventory, the Martin County sign was a five - pole wooden

structure.

8. The Martin County sign sustained heavy damage during

the 2004 hurricanes. After the storms, Lamar sent a work crew

to the sign's location to rebuild the sign. The work crew

replaced the sign with a four - pole wooden structure.

9 . Dave Henry, the real estate leasing manager for Lamar,

testified that he gave the crew no particular instruction on how

to rebuild the sign. During the rebuilding process, Mr. Henry

gave his crews the locations, and told them to rebuild the signs

as th ey had been before the storms. Mr. Henry stated that the

crew probably looked at the remains of the damaged sign, saw

only four stumps in the ground, and assumed that the original

sign had only four supports.

10. On March 21, 2006, the Department issued a Notice to

Lamar, stating that the sign bearing tag numbers BT339 and AE862

"has been structurally changed and is no longer substantially

the same as it was on the date it became nonconforming, in

violation of s. [sic] 14 - 10.007(2)(a) , Florida Administrat ive

Code Rule ."

11. On February 20, 2007, a R ecommended O rder was entered

in Lamar South Florida v. Department of Transportation , Case

No. 06 - 3281 (DOAH February 20, 2007). In that case, Judge

R. Bruce McKibben recommended that the Department withdraw a

Notice issued to Lamar South Florida because the Notice failed

to specify exactly which changes to the sign in question caused

the sign to be in violation of the Department's rules. Rather,

the Notice merely provided a citation to Florida Administrat ive

Code Rule 14 - 10.007(2)(a).

12. In a final order dated May 21, 2007, the Department

accepted Judge McKibben's recommendation, and acknowledged the

"apparent confusion" regarding the running of the 30 - day notice

period and the nature of the notice required to trigger the

running of that period. As a result of the Lamar South Florida

case, the Department began to issue Notices that contained more

specific information regarding the alleged violations.

13. On July 31, 2007, the Department sent Lamar a

replac ement Notice for the Martin County sign, adding a more

specific description of the violation , which stated that the

sign "has been structurally modified in violation of

s. [sic] 14 - 10.007(2)(a) , Florida Administrative Code Rule : the

number of supports ha s changed." 2

14. The replacement notice also added the following

provision:

REVOCATION OF THE PERMIT(S) WILL BECOME

FINAL thirty (30) days from your receipt of

this notice unless you provide information

to the Department showing the Notice was

issued in e rror OR you correct the violation

within 30 days of your receipt of this

Notice, and provide evidence of the

correction to the Department. For

nonconforming signs, while you may correct

the violation, you may not exceed the

allowable maintenance standards as stated in

s. 14 - 10.007(2), F.A.C.

15. Lamar did not act within 30 days of the Notice to

correct the violation and restore the Martin County sign to a

five - pole structure. Mr. Henry testified that a fifth pole was

added to the structure on November 1 6, 2007.

16. The Department issued permit number 7359 and tag

number AX116 to a nonconforming, single - faced sign in Polk

County along U.S. 27, .141 miles east of Heatherwood Boulevard

in Lake Wales. On November 22, 1997, the Polk County sign was

inventor ied and photographed as a seven - pole wooden structure.

17. Lamar did not own the sign at the time the 2004

hurricanes damaged it. Lamar acquired the Polk county sign in

2005, after it had been rebuilt as a six - pole structure.

18. On March 21, 2006, the Department issued a Notice to

Lamar, stating that the sign bearing tag number AX116 "has been

structurally changed and is no longer substantially the same as

it was on the date it became nonconforming, in violation of

s. [sic] 14 - 10.007(2)(a), Florida Adm inistrative Code."

19. On July 31, 2007, the Department sent Lamar a

replacement Notice for the Polk County sign, adding a more

specific description of the violation which stated that the sign

"has been structurally modified in violation of s. [sic] 14 -

10 .007(2), Florida Administrative Code: the number of supports

has changed. . ." . 3 The replacement notice also contained the

language quoted at finding of fact 14, supra .

20. Lamar did not act within 30 days of the Notice to

correct the violation and rest ore the Polk County sign to a

seven - pole structure.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57,

Fla. Stat. (2007).

22. The Department is authorized to regulate outdo or

advertising signs located along interstate and federal - aid

primary highways , pursuant to Chapter 479, Florida Statutes,

and Florida Administrative Code Chapter 14 - 10.

23. The Department has the burden to prove by a

preponderance of the evidence the fa cts necessary to revoke

Lamar's permits. See Florida Department of Transportation v.

J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA 1981)( t he burden of

proof, apart from statute, is on the party asserting the

affirmative of an issue).

24. Florida Administr ative Code Rule 14 - 10.007, titled

"Maintenance of Nonconforming Signs ," provides, in pertinent

part:

(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

n onconforming 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

all t hose 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 ele ctric lighting,

except in cases where such items have been

incorporated into the sign as load - bearing

parts. The following are examples of

modifications which do not constitute

reasonable repair or maintenance, and which

constitute substantial changes to a

nonconforming sign that will result in the

loss of nonconforming 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

struct ure 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 vi sible;

(d) Modification 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 nonconfor ming sign may continue to

exist so long as it is not destroyed,

abandoned, or discontinued. . . .

25. 23 C.F.R. s. 750.707(d) provides, in pertinent part:

(d) Maintenance and continuance. In order

to maintain and continue a nonconforming

sign, the follo wing conditions apply:

* * *

(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

cha nge which would terminate nonconforming

rights. Each State shall develop its own

criteria to determine when customary

maintenance ceases and a substantial change

has occurred which would terminate

nonconforming rights.

26. Section 479.08, Florida Statut es, provides:

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 permit tee

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 this chapter. Any person

aggrie ved 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 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

oper ate to stay the revocation until the

department's action is upheld.

27. Though Florida Administrative Code Rule 14 - 10.007

makes no specific mention of support poles, the Department

asserts that "reasonable repair and maintenance" is restricted

to "replac ement in kind of materials in the sign structure," and

that this restriction necessarily applies to support poles. The

Department points out Florida Administrative Code Rule 14 -

10.007(2)(a) prohibits a modification that "changes the

structure of, or the t ype of structure of, the sign," and

contends that a change in the number of poles constitutes such a

modification. The Department's interpretation of Florida

Administrative Code Rule 14 - 10.007 is reasonable. See

Department of Agriculture v. Sun Gardens C itrus, LLP et al. ,

780 So. 2d 922, 925 - 926 (Fla. 2d DCA 2001)(trial court must

afford great deference to agency's interpretation of a rule it

promulgated concerning matters administered by that agency; the

agency's reasonable interpretation of its rule mu st stand even

when there are other reasonable interpretations available).

28. The replacement Notices issued on July 31, 2007,

placed Lamar on clear notice that the violations alleged as to

both the Martin County sign and the Polk County sign was a

change in the number of support poles. The notices provided a

30 - day period in which to notify the Department that the Notices

were in error or to restore the signs to their original number

of supports. Lamar took no action within the prescribed 30 - day

period to restore the signs to their permitted number of support

poles. The Department acted within its discretion in

disregarding Lamar's after - the - fact efforts to restore the

support poles to their original number of supports.

29. The Department has met its b urden of proof and has

provided sufficient evidence to support its Notices 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 revoking the permits for the nonconforming

signs bearing tag numbers BT339, AE862, and AX116.

DONE AND ENTER ED this 2 1st day of February , 2008 , in

Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 2 1st day of February, 2008 .

ENDNOTES

1/ S ubs ection 479.01(14), Florida Statutes, provides:

"Nonconforming sign" means a sign which was

lawfully erected but which does not comply

with the land use, setback, size, spacin g,

and lighting provisions of state or local

law, rule, regulation, or ordinance passed

at a later date or a sign which was lawfully

erected but which later fails to comply with

state or local law, rule, regulation, or

ordinance due to changed conditions.

See also Florida Administrative Code Rule 14 - 10.007, Maintenance

of Nonconforming Signs.

2/ At the hearing and in its proposed recommended order, Lamar

has contended that even the revised Notice was insufficient,

because it did not specify exactly how t he number of supports

had changed. The undersigned finds this contention lacking in

merit. The quoted language gave Lamar sufficient notice as to

which parts of its sign had been changed and required

correction.

3/ The Notice also alleged that the HAGL of the sign had been

changed. The Department abandoned this allegation at the final

hearing.

COPIES FURNISHED :

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

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

James C. Myers, Agency Clerk

Department of Transportation

Haydon Burns Buil ding

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

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.