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


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8LAMAR OUTDOOR ADVERTISING - )

13LAKELAND , )

15)

16Petitioner , )

18)

19vs. ) Case Nos. 07 - 4732

26) 07 - 4734

30DEPARTMENT OF TRANSPORTATION , )

34)

35Respondent . )

38)

39RECOMMENDED ORDER

41Pursuant to notice, a final hearing was conducted in this

51case on December 20, 2007, in Tallahassee, Florida, before

60Lawrence P. Stevenson, a duly - designated Administrative Law

69Judge of the Division of Administrative Hearings ("DOA H").

80APPEARANCES

81For Petitioner: Gerald S. Livingston, Esquire

87Pennington, Moore, Wilkinson,

90Bell & Dunbar, P.A.

94215 South Monroe Street, Second Floor

100Post Office Box 10095

104Tallahassee, Florida 32302 - 2095

109For Respondent: Susan Schwartz, Esquire

114Department of Transportation

117Haydon Burns Building, Mail Station 58

123605 Suwannee Street

126Tallahassee, Florida 32399 - 0450

131STATEMENT OF THE ISSUE

135At issue in these consolidated proceedings is whether the

144permits for signs bearing tag numbers BT339, AE862, and AX116

154should be revoked , pursuant to Section 479.08, Florida Statutes

163(2007).

164PRELIMINARY STATEMENT

166On M arch 21, 2006, the Department of Transportation (the

"176Department") issued two Notices of Intent to Revoke Sign Permit

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

199that nonconforming signs bearing tag numbers BT339, AE862, and

208AX116 had b een structurally changed and were no longer

218substantially the same as they were on the date they became

229nonconforming, in violation of Florida Administrative Code

236Rule 14 - 10.007(2)(a). The Department issued revised Notices on

246July 31, 2007. Lamar timely filed petitions for formal

255administrative hearings to contest the Notices. The petition

263challenging the Notice regarding tag numbers BT339 and AE862 was

273assigned DOAH Case No. 07 - 4732. The petition challenging the

284Notice regarding tag number AX116 was a ssigned DOAH Case

294No. 07 - 4734. Lamar's unopposed motion to consolidate the cases

305was granted by order dated December 17, 2007.

313At the hearing, Lamar presented the testimony of Dave

322Henry, its real estate leasing manager. Lamar's Exhibits 1

331through 3 wer e admitted into evidence. The Department presented

341the telephonic testimony of its outdoor advertising inspectors

349Steve Leslie and Mark Johnson, and the in - person testimony of

361Lynn Holschuh, the Department's state outdoor advertising

368administrator. The D epartment's Exhibits 1 through 17 were

377admitted into evidence.

380At the close of the evidentiary portion of the final

390hearing, the parties requested and were allowed 20 days from the

401filing of the hearing transcript within which to file proposed

411recommended orders. The one - volume hearing T ranscript was filed

422on January 7, 2008. The Department filed its P roposed

432R ecommended O rder on January 28, 2008, and Lamar filed its

444P roposed R ecommended O rder on January 29, 2008. Neither party

456objected to the lateness o f the other's filing, and therefore

467both parties proposed recommended orders have been accepted and

476considered during the preparation of this Recommended Order.

484FINDINGS OF FACT

4871. Lamar owns and maintains outdoor advertising signs in

496the State of Florida . Pursuant to the permitting requirements

506of Section 479.07, Florida Statutes, the Department issues

514permits and tags to outdoor advertising signs along interstate

523and federal - aid primary highway systems. Signs that met

533permitting criteria at the time th ey were erected , but that do

545not comply with subsequently enacted laws or that no longer

555comply with the law due to changed conditions , may nonetheless

565be permitted and maintained as "nonconforming signs." 1

5732. In compliance with S ubs ection 479.02(8), Flor ida

583Statutes, the Department in 1997 and 1998 conducted a statewide

593inventory of all signs on the state interstate and federal - aid

605primary highway systems. This inventory became the database for

614all signs permitted at the time it was completed. The

624Depar tment sent the inventory results to all sign owners in

635order to provide them an opportunity to confirm or challenge the

646accuracy of the results.

6503. The database includes the location of the sign; the

660dates the sign was permitted and constructed; its date and

670method of construction; the height, including the Height Above

679Ground Level ("HAGL"); the height, width, and square footage of

691the sign facing; the number and type of support structures used;

702whether the sign is lighted or not; the status of the sign a s a

717conforming, nonconforming, or illegal sign; and other

724identifying information.

7264. S ubs ection 479.02(8), Florida Statutes, provides that

735the inventory of signs is to be updated no less than every two

748years. The Department in fact performs the update e very year.

7595. In 2004, a series of hurricanes passed through Florida,

769destroying or damaging thousands of outdoor advertising signs.

777The Department issued notices of intent to revoke the permits of

788nonconforming signs that appeared to have been destroyed by the

798storms.

7996. In February 2005, the Department and Lamar entered into

809a settlement agreement that allowed Lamar to rebuild some signs

819and required the removal of others. The signs at issue in this

831proceeding were among those allowed to remain standi ng with

841repair. As to these signs, the settlement agreement provided:

850The outdoor advertising signs referenced

855above remain lawfully erected nonconforming

860signs and LAMAR may repair said signs,

867provided that said repair shall be at the

875pre - storm location and to pre - storm

884specifications, including configuration,

887type of materials, height, size, area of

894face and lighting. Exceptions to pre - storm

902specifications will be allowed to the extent

909required to comply with local building

915codes. Such repairs shall be completed

921within 270 days of entry of a Final Order

930approving this Joint Stipulation of

935Settlement.

936The referenced Final Order was entered on March 15, 2005.

9467. The Department issued permit numbers 13778 and 137790

955and tag numbers BT339 (replaced by tag number CF221 at the time

967of the hearing) and AE862 to a nonconforming, back - to - back sign

981located along U.S. 1 in Martin County, .08 miles north of

992Constitution Boulevard in Hobe Sound. At the time of the 1997

1003inventory, the Martin County sign was a five - pole wooden

1014structure.

10158. The Martin County sign sustained heavy damage during

1024the 2004 hurricanes. After the storms, Lamar sent a work crew

1035to the sign's location to rebuild the sign. The work crew

1046replaced the sign with a four - pole wooden structure.

10569 . Dave Henry, the real estate leasing manager for Lamar,

1067testified that he gave the crew no particular instruction on how

1078to rebuild the sign. During the rebuilding process, Mr. Henry

1088gave his crews the locations, and told them to rebuild the signs

1100as th ey had been before the storms. Mr. Henry stated that the

1113crew probably looked at the remains of the damaged sign, saw

1124only four stumps in the ground, and assumed that the original

1135sign had only four supports.

114010. On March 21, 2006, the Department issued a Notice to

1151Lamar, stating that the sign bearing tag numbers BT339 and AE862

"1162has been structurally changed and is no longer substantially

1171the same as it was on the date it became nonconforming, in

1183violation of s. [sic] 14 - 10.007(2)(a) , Florida Administrat ive

1193Code Rule ."

119611. On February 20, 2007, a R ecommended O rder was entered

1208in Lamar South Florida v. Department of Transportation , Case

1217No. 06 - 3281 (DOAH February 20, 2007). In that case, Judge

1229R. Bruce McKibben recommended that the Department withdraw a

1238Notice issued to Lamar South Florida because the Notice failed

1248to specify exactly which changes to the sign in question caused

1259the sign to be in violation of the Department's rules. Rather,

1270the Notice merely provided a citation to Florida Administrat ive

1280Code Rule 14 - 10.007(2)(a).

128512. In a final order dated May 21, 2007, the Department

1296accepted Judge McKibben's recommendation, and acknowledged the

"1303apparent confusion" regarding the running of the 30 - day notice

1314period and the nature of the notice required to trigger the

1325running of that period. As a result of the Lamar South Florida

1337case, the Department began to issue Notices that contained more

1347specific information regarding the alleged violations.

135313. On July 31, 2007, the Department sent Lamar a

1363replac ement Notice for the Martin County sign, adding a more

1374specific description of the violation , which stated that the

1383sign "has been structurally modified in violation of

1391s. [sic] 14 - 10.007(2)(a) , Florida Administrative Code Rule : the

1402number of supports ha s changed." 2

140914. The replacement notice also added the following

1417provision:

1418REVOCATION OF THE PERMIT(S) WILL BECOME

1424FINAL thirty (30) days from your receipt of

1432this notice unless you provide information

1438to the Department showing the Notice was

1445issued in e rror OR you correct the violation

1454within 30 days of your receipt of this

1462Notice, and provide evidence of the

1468correction to the Department. For

1473nonconforming signs, while you may correct

1479the violation, you may not exceed the

1486allowable maintenance standards as stated in

1492s. 14 - 10.007(2), F.A.C.

149715. Lamar did not act within 30 days of the Notice to

1509correct the violation and restore the Martin County sign to a

1520five - pole structure. Mr. Henry testified that a fifth pole was

1532added to the structure on November 1 6, 2007.

154116. The Department issued permit number 7359 and tag

1550number AX116 to a nonconforming, single - faced sign in Polk

1561County along U.S. 27, .141 miles east of Heatherwood Boulevard

1571in Lake Wales. On November 22, 1997, the Polk County sign was

1583inventor ied and photographed as a seven - pole wooden structure.

159417. Lamar did not own the sign at the time the 2004

1606hurricanes damaged it. Lamar acquired the Polk county sign in

16162005, after it had been rebuilt as a six - pole structure.

162818. On March 21, 2006, the Department issued a Notice to

1639Lamar, stating that the sign bearing tag number AX116 "has been

1650structurally changed and is no longer substantially the same as

1660it was on the date it became nonconforming, in violation of

1671s. [sic] 14 - 10.007(2)(a), Florida Adm inistrative Code."

168019. On July 31, 2007, the Department sent Lamar a

1690replacement Notice for the Polk County sign, adding a more

1700specific description of the violation which stated that the sign

"1710has been structurally modified in violation of s. [sic] 14 -

172110 .007(2), Florida Administrative Code: the number of supports

1730has changed. . ." . 3 The replacement notice also contained the

1742language quoted at finding of fact 14, supra .

175120. Lamar did not act within 30 days of the Notice to

1763correct the violation and rest ore the Polk County sign to a

1775seven - pole structure.

1779CONCLUSIONS OF LAW

178221. DOAH has jurisdiction over the parties to and the

1792subject matter of this proceeding. §§ 120.569 and 120.57,

1801Fla. Stat. (2007).

180422. The Department is authorized to regulate outdo or

1813advertising signs located along interstate and federal - aid

1822primary highways , pursuant to Chapter 479, Florida Statutes,

1830and Florida Administrative Code Chapter 14 - 10.

183823. The Department has the burden to prove by a

1848preponderance of the evidence the fa cts necessary to revoke

1858Lamar's permits. See Florida Department of Transportation v.

1866J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA 1981)( t he burden of

1880proof, apart from statute, is on the party asserting the

1890affirmative of an issue).

189424. Florida Administr ative Code Rule 14 - 10.007, titled

"1904Maintenance of Nonconforming Signs ," provides, in pertinent

1911part:

1912(1) A nonconforming sign must remain

1918substantially the same as it was as of the

1927date it became nonconforming.

1931(2) Reasonable repair and maintenance of

1937n onconforming signs, including change of

1943advertising message, is permitted and is not

1950a change which would terminate the

1956nonconforming status. Reasonable repair and

1961maintenance means the work necessary to keep

1968the sign structure in a state of good

1976repair, including the replacement in kind of

1983materials in the sign structure. Where the

1990replacement of materials is involved, such

1996replacement may not exceed 50% of the

2003structural materials in the sign within any

201024 month period. "Structural materials" are

2016all t hose materials incorporated into the

2023sign as load - bearing parts, including

2030vertical supports, horizontal stringers,

2034braces, bracing wires, brackets, and

2039catwalks. Structural materials do not

2044include the sign face, any skirt, any

2051electrical service, or ele ctric lighting,

2057except in cases where such items have been

2065incorporated into the sign as load - bearing

2073parts. The following are examples of

2079modifications which do not constitute

2084reasonable repair or maintenance, and which

2090constitute substantial changes to a

2095nonconforming sign that will result in the

2102loss of nonconforming status:

2106(a) Modification that changes the structure

2112of, or the type of structure of, the sign,

2121such as conversion of a back - to - back sign to

2133a V - type, or conversion of a wooden sign

2143struct ure to a metal structure;

2149* * *

2152(b) Modification that changes the area of

2159the sign facing or the HAGL of the sign,

2168* * *

2171(c) Modification that enhances the

2176visibility of the sign's message, or the

2183period of time that the message is vi sible;

2192(d) Modification that adds automatic

2197changeable faces; or

2200(e) Modification that adds artificial

2205lighting, or changes the existing lighting

2211such that the illumination to the sign

2218facing is substantially increased.

2222* * *

2225(6) A nonconfor ming sign may continue to

2233exist so long as it is not destroyed,

2241abandoned, or discontinued. . . .

224725. 23 C.F.R. s. 750.707(d) provides, in pertinent part:

2256(d) Maintenance and continuance. In order

2262to maintain and continue a nonconforming

2268sign, the follo wing conditions apply:

2274* * *

2277(5) The sign must remain substantially the

2284same as it was on the effective date of the

2294State law or regulations. Reasonable repair

2300and maintenance of the sign, including a

2307change of advertising message, is not a

2314cha nge which would terminate nonconforming

2320rights. Each State shall develop its own

2327criteria to determine when customary

2332maintenance ceases and a substantial change

2338has occurred which would terminate

2343nonconforming rights.

234526. Section 479.08, Florida Statut es, provides:

2352The department has the authority to deny or

2360revoke any permit requested or granted under

2367this chapter in any case in which it

2375determines that the application for the

2381permit contains knowingly false or

2386misleading information or that the permit tee

2393has violated any of the provisions of this

2401chapter, unless such permittee, within

240630 days after the receipt of notice by the

2415department, corrects such false or

2420misleading information and complies with the

2426provisions of this chapter. Any person

2432aggrie ved by any action of the department in

2441denying or revoking a permit under this

2448chapter may, within 30 days after receipt of

2456the notice, apply to the department for an

2464administrative hearing pursuant to chapter

2469120. If a timely request for hearing has

2477been filed and the department issues a final

2485order revoking a permit, such revocation

2491shall be effective 30 days after the date of

2500rendition. Except for department action

2505pursuant to s. 479.107(1), the filing of a

2513timely and proper notice of appeal shall

2520oper ate to stay the revocation until the

2528department's action is upheld.

253227. Though Florida Administrative Code Rule 14 - 10.007

2541makes no specific mention of support poles, the Department

2550asserts that "reasonable repair and maintenance" is restricted

2558to "replac ement in kind of materials in the sign structure," and

2570that this restriction necessarily applies to support poles. The

2579Department points out Florida Administrative Code Rule 14 -

258810.007(2)(a) prohibits a modification that "changes the

2595structure of, or the t ype of structure of, the sign," and

2607contends that a change in the number of poles constitutes such a

2619modification. The Department's interpretation of Florida

2625Administrative Code Rule 14 - 10.007 is reasonable. See

2634Department of Agriculture v. Sun Gardens C itrus, LLP et al. ,

2645780 So. 2d 922, 925 - 926 (Fla. 2d DCA 2001)(trial court must

2658afford great deference to agency's interpretation of a rule it

2668promulgated concerning matters administered by that agency; the

2676agency's reasonable interpretation of its rule mu st stand even

2686when there are other reasonable interpretations available).

269328. The replacement Notices issued on July 31, 2007,

2702placed Lamar on clear notice that the violations alleged as to

2713both the Martin County sign and the Polk County sign was a

2725change in the number of support poles. The notices provided a

273630 - day period in which to notify the Department that the Notices

2749were in error or to restore the signs to their original number

2761of supports. Lamar took no action within the prescribed 30 - day

2773period to restore the signs to their permitted number of support

2784poles. The Department acted within its discretion in

2792disregarding Lamar's after - the - fact efforts to restore the

2803support poles to their original number of supports.

281129. The Department has met its b urden of proof and has

2823provided sufficient evidence to support its Notices of Intent to

2833Revoke Sign Permit.

2836RECOMMENDATION

2837Based on the foregoing Findings of Fact and Conclusions of

2847Law, it is

2850RECOMMENDED that a final order be entered by the Department

2860of Transportation revoking the permits for the nonconforming

2868signs bearing tag numbers BT339, AE862, and AX116.

2876DONE AND ENTER ED this 2 1st day of February , 2008 , in

2888Tallahassee, Leon County, Florida.

2892LAWRENCE P. STEVENSON

2895Administrative Law Judge

2898Division of Administrative Hearings

2902The DeSoto Building

29051230 Apalachee Parkway

2908Tallahassee, Florida 32399 - 3060

2913(850) 488 - 9675 SUNCOM 278 - 9675

2921Fax Filing (850) 921 - 6847

2927www.doah.state.fl.us

2928Filed with the Clerk of the

2934Division of Administrative Hearings

2938this 2 1st day of February, 2008 .

2946ENDNOTES

29471/ S ubs ection 479.01(14), Florida Statutes, provides:

"2955Nonconforming sign" means a sign which was

2962lawfully erected but which does not comply

2969with the land use, setback, size, spacin g,

2977and lighting provisions of state or local

2984law, rule, regulation, or ordinance passed

2990at a later date or a sign which was lawfully

3000erected but which later fails to comply with

3008state or local law, rule, regulation, or

3015ordinance due to changed conditions.

3020See also Florida Administrative Code Rule 14 - 10.007, Maintenance

3030of Nonconforming Signs.

30332/ At the hearing and in its proposed recommended order, Lamar

3044has contended that even the revised Notice was insufficient,

3053because it did not specify exactly how t he number of supports

3065had changed. The undersigned finds this contention lacking in

3074merit. The quoted language gave Lamar sufficient notice as to

3084which parts of its sign had been changed and required

3094correction.

30953/ The Notice also alleged that the HAGL of the sign had been

3108changed. The Department abandoned this allegation at the final

3117hearing.

3118COPIES FURNISHED :

3121Gerald S. Livingston, Esquire

3125Pennington, Moore, Wilkinson,

3128Bell & Dunbar, P.A.

3132215 South Monroe Street, Second Floor

3138Post Office Box 10095

3142Tallahassee, Florida 32302 - 2095

3147Susan Schwartz, Esquire

3150Department of Transportation

3153Haydon Burns Building, Mail Station 58

3159605 Suwannee Street

3162Tallahassee, Florida 32399 - 0450

3167James C. Myers, Agency Clerk

3172Department of Transportation

3175Haydon Burns Buil ding

3179605 Suwannee Street, Mail Station 58

3185Tallahassee, Florida 32399 - 0450

3190Alexis M. Yarbrough, General Counsel

3195Department of Transportation

3198Haydon Burns Building

3201605 Suwannee Street, Mail Station 58

3207Tallahassee, Florida 32399 - 0450

3212Stephanie Kopelousos, Secretary

3215Department of Transportation

3218Haydon Burns Building

3221605 Suwannee Street, Mail Station 57

3227Tallahassee, Florida 32399 - 0450

3232NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3238All parties have the right to submit written exceptions within

324815 days from the date of this Recommended Order. Any exceptions

3259to this Recommended Order should be filed with the agency that

3270will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 05/18/2009
Proceedings: Opinion filed.
PDF:
Date: 05/15/2009
Proceedings: Opinion
PDF:
Date: 05/23/2008
Proceedings: Final Order filed.
PDF:
Date: 05/20/2008
Proceedings: Agency Final Order
PDF:
Date: 02/21/2008
Proceedings: Recommended Order
PDF:
Date: 02/21/2008
Proceedings: Recommended Order (hearing held December 20, 2007). CASE CLOSED.
PDF:
Date: 02/21/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/29/2008
Proceedings: Lamar Advertising Company - Lakeland Proposed Recommended Order (07-4732) filed.
PDF:
Date: 01/29/2008
Proceedings: Lamar Advertising Company-Lakeland`s Proposed Recmmended Order (07-4734) filed.
PDF:
Date: 01/29/2008
Proceedings: Notice of Filing Lamar Advertising Company-Lakeland`s Proposed Recmmended Order (07-4734) filed.
PDF:
Date: 01/29/2008
Proceedings: Notice of Filing Lamar Advertising Company-Lakeland`s Proposed Recmmended Order (074732) filed.
PDF:
Date: 01/28/2008
Proceedings: Proposed Recommended Order of Respondent, Department of Transportation filed.
Date: 01/07/2008
Proceedings: Transcript filed.
PDF:
Date: 12/31/2007
Proceedings: Respondent`s Notice of Filing Notary Affidavit (S. Leslie).
PDF:
Date: 12/31/2007
Proceedings: Respondent`s Notice of Filing Notary Affidavit (M. Johnson).
PDF:
Date: 12/24/2007
Proceedings: Affidavit of C. Salazar filed.
Date: 12/20/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/17/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-4732 and 07-4734).
PDF:
Date: 12/14/2007
Proceedings: Motion to Consolidate Cases filed.
PDF:
Date: 12/13/2007
Proceedings: Respondent`s Motion to Allow Witness Testimony by Telephone filed.
PDF:
Date: 12/10/2007
Proceedings: Joint Stipulated Pre-hearing Report filed.
PDF:
Date: 12/10/2007
Proceedings: Respondent`s Notice of Serving Response to Petitioner`s First Request for Production of Documents filed.
PDF:
Date: 12/07/2007
Proceedings: Motion to Relinquish Jurisdiction filed.
PDF:
Date: 12/07/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-4732 and 07-4894).
PDF:
Date: 12/05/2007
Proceedings: Motion to Consolidate Cases (DOAH case numbers 07-4894, 07-4732) filed.
PDF:
Date: 11/07/2007
Proceedings: Plantiff`s First Set of Interrogatories to Defendant filed.
PDF:
Date: 11/07/2007
Proceedings: Plantiff`s First Request for Production of Documents to Defendant filed.
PDF:
Date: 10/30/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/30/2007
Proceedings: Notice of Hearing (hearing set for December 18, 2007; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 10/26/2007
Proceedings: Department`s Notice of Serving First Request for Production of Documents to Petitioner filed.
PDF:
Date: 10/24/2007
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 10/15/2007
Proceedings: Initial Order.
PDF:
Date: 10/12/2007
Proceedings: Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 10/12/2007
Proceedings: Notice of Intent to Revoke Sign Permit for Noncompliance filed.
PDF:
Date: 10/12/2007
Proceedings: Agency referral filed.

Case Information

Judge:
LAWRENCE P. STEVENSON
Date Filed:
10/12/2007
Date Assignment:
12/17/2007
Last Docket Entry:
05/18/2009
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (7):