07-005457 Lamar Outdoor Advertising-Lakeland vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, March 26, 2008.

Summary: Petitioner re-constructed an existing, non-conforming sign, but improperly changed its structural status. The revocation of its permit is upheld.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR OUTDOOR ADVERTISING- )

LAKELAND, )

)

Petitioner, )

)

vs. ) Case No. 07-5457

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 8, 2008, 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 Respondent: Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

STATEMENT OF THE ISSUES

The issues in this case are whether there was a structural

change in Petitioner's sign, and whether the Department of

Transportation's Notice of Intent to Revoke Sign Permit for

violating Florida Administrative Code Rule 14-10.007(2) should

be affirmed.

PRELIMINARY STATEMENT

On January 30, 2006, the Department of Transportation

("DOT" or the "Department") issued a Notice of Intent to Revoke

Sign Permit to Lamar Outdoor Advertising - Lakeland ("Lamar").

Lamar responded with a Petition for Formal Administrative

Hearing to challenge the decision. On May 1, 2006, DOT issued

an Amended Notice of Intent to Revoke Sign Permit, and Lamar

filed a petition in response. Finally, on July 31, 2007, DOT

issued a final Notice of Intent to Revoke Sign Permit for

Noncompliance (the Notice) replacing the prior notices. In

response, Lamar filed a 2nd Amended Petition for Formal

Administrative Hearing (the Petition), which was duly-

transferred to the Division of Administrative Hearings.

At the final hearing, the parties stipulated to

Petitioner's Exhibits 1 through 6, which are identified as Joint

Exhibits 1 through 6. Petitioner called one witness:

Benjamin N. Henry, a real estate manager for Lamar. Respondent

called one witness: Lynn Holschuh, an outdoor advertising

administrator with DOT. Andre Pavlov, an engineer with DOT, was

called as a rebuttal witness.

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 their

respective proposed recommended orders. A one-volume hearing

Transcript was filed on February 22, 2008. The parties then

requested and were granted additional time to prepare their

post-hearing submissions; both parties then filed proposed

recommended orders 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 eight-tenths of a mile

south of Highway 17-92, just south of Haines City in Polk

County. The Sign is assigned Tag No. BH378.

2. The Sign was purchased by Lamar from Prime Outdoor in

December 2004. At the time it was purchased, the Sign was a

single-faced, wooden structure.

3. When the Sign was originally constructed (in the late

1960's), the supports for the Sign were made of one and one-half

by one and one-half (1 1/2 x 1 1/2)-inch angle iron. The DOT

database indicates the Sign was constructed as a steel, single-

faced structure. Pictures of the Sign as it appeared in 1997

show the steel A-frame construction of the supports.

4. When Lamar decided to purchase the Sign, its real

estate leasing manager (David Henry) investigated the status of

the Sign. Henry accessed the DOT website to determine the

status of the Sign. He also physically inspected the Sign to

see whether it was in compliance with state and local

regulations. His findings were that DOT records showed the Sign

to be made of steel construction, but his visual inspection

revealed wooden support posts in place of the steel A-frame

construction.

5. Henry knew the Sign had been damaged during the

2004 hurricane season. The Sign had been rebuilt by the time

Lamar purchased it in December of that year. The Sign was

reportedly rebuilt as part of a global settlement between DOT

and the various sign companies whose properties had been

similarly damaged during the storms; however, the settlement

agreement authorizing reconstruction was not signed until

February 2005. 1

6. Inasmuch as Lamar owned another sign nearby, Henry was

aware of what the Sign looked like both before and after the

hurricanes had damaged it.

7. At the time of the purchase, Lamar was not aware of any

actions being taken by DOT due to alleged violations concerning

the Sign. Notice of a violation was not issued until 2006.

8. The basis of DOT's proposed revocation was that the

Sign had been modified in violation of Florida Administrative

Code Rule 14-10.007(2) by: (1) changing structural materials

from steel to wood and (2) changing the Height Above Ground

Level of the Sign. The second basis for revocation was

withdrawn before final hearing, and only the first basis is at

issue.

9. There is no dispute that the Sign was originally

constructed with a steel A-frame design for its supports but was

re-constructed with wooden poles as its support.

10. The A-frame construction was not utilized during re-

construction for two reasons: First, the angle iron used in the

original construction is no longer available. The A-frame

design was borne of technology from the early 1960's and has

proven inferior to new design and materials. Second, the A-

frame design would not meet the wind-resistance requirements

extant in today's world.

11. The Notice filed by DOT directed Lamar to provide

information to DOT within 30 days as to whether (1) Lamar

believed the Notice was issued in error or (2) the violation had

been corrected. Lamar did not respond concerning either of the

two alternatives.

12. The Notice provided it would become final in 30 days

unless Lamar responded as set forth above or contested the

revocation by way of an administrative hearing. 2 Lamar availed

itself of the Chapter 120, Florida Statutes, option and filed a

Petition for Formal Administrative Hearing.

13. In the de novo final hearing, Lamar presented its

rationale as to why the Notice was issued in error, i.e. , that

Lamar was allowed to change the supports in order to comply with

local and state building codes.

14. The post-2004 hurricane season settlement agreement

entered into by DOT and Lamar allowed reconstruction of signs

damaged by that year's storms. The agreement specifically

states, "Exceptions to pre-storm specifications will be allowed

to the extent required to comply with local building codes."

15. The angle iron construction of the Sign would not,

according to Lamar's witness, meet current wind-storm

requirements in the local building code. However, the building

code itself was not offered into evidence, and the sole witness

presented by Lamar was not offered as an expert to testify

concerning the building code. 3

16. DOT provided examples of how certain metal supports

could have been utilized in place of the old, outdated metal A-

frame used in the original design. That is, wood was not the

only alternative available to Lamar.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsections

120.57(1), Florida Statutes. 4

18. Proceedings under the jurisdiction of the Division of

Administrative Hearings are de novo in nature. § 120.57(1)(k),

Fla. Stat.

19. The control and regulation of roadside signs in the

state falls within the purview of DOT as set forth in

Chapter 479, Florida Statutes. DOT's specific duties in this

regard are set forth at Section 479.02, Florida Statutes.

20. Florida Administrative Code Rule 14-10.007, in the

version dated August 19, 2001, was in effect as of the date of

DOT's Notice. 5 It states 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

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-paragraph (6)(a)2.a. below.

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

structure to a metal structure; [6]

1. The Department will authorize structural

alterations to a nonconforming sign in

instances where the Occupational Safety and

Health Administration (OSHA) requirements or

other safety related requirements

necessitate alterations, provided that the

reconstruction shall not be authorized

primarily for the purpose of replacement of

deteriorated materials. The Department will

accept a notice or other writing from OSHA

or other regulatory body to the permittee

requiring the intended alteration as

documentation of safety requirements. If

the structural alterations are intended to

be made to comply with OSHA regulation, the

permittee must submit to the Department a

statement in writing citing the OSHA

regulation with which it is intending to

comply and explaining how the intended

alteration is required by the cited OSHA

regulation. Structural alterations are

allowed only if no alternatives are

available which address safety requirements.

Documentation of the requirements must be

submitted to, and approved by, the

Department prior to making any structural

alterations. The location, structural

configuration, number of faces, size of the

sign faces, sign structure height, and the

materials used in the sign structure and

sign faces must be the same type as those

used in the sign prior to approval of the

alterations. . . .

* * *

(6) A nonconforming sign may continue to

exist so long as it is not destroyed,

abandoned, or discontinued. "Destroyed,"

"abandoned," and "discontinued" have the

following meanings:

* * *

a. Structural materials are 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.

Lamar did not submit to DOT a letter from the local zoning or

building authority concerning the structure of the Sign. There

was no "notice or other writing" on which DOT could rely to

grant the proposed changes to the Sign.

21. 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 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, 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

operate to stay the revocation until the

department's action is upheld.

DOT's revocation notice was therefore stayed pending the outcome

of this final administrative hearing.

22. As the party seeking to revoke Lamar's permit, the

Department bears the burden of proof, by a preponderance of the

evidence, that the allegation in the charging document is

correct. See Florida Department of Transportation v. J.W.C.

Company , 396 So. 2d 778, 788 (Fla. 1st DCA 1981). There is no

dispute concerning the change in structural supports on the

Sign, and DOT has met its burden in this case.

23. The burden is then on Lamar to demonstrate that the

facts asserted in its Petition, i.e. , that conversion of the

sign supports from metal to wood was allowable pursuant to the

settlement agreement, are true. Id. 396 at 789. Lamar did not

meet its burden.

24. It is clear from the evidence that the Sign was

rebuilt after it was damaged in the 2004 hurricane season. The

re-construction resulted in a sign that was structurally

different from the sign which existed at the time it became

nonconforming.

25. The August 2001 version of Florida Administrative Code

Rule 14-10.007 did not specifically address structural

alterations of signs based on compliance with building codes.

So, although the current version of the rule does require

written notice as to such alterations, the provision did not

exist at the time the Sign was rebuilt. However, inasmuch as

Lamar made no competent showing as to what the current building

code requires, it is irrelevant that no notice was provided to

DOT.

26. The Notice provided Lamar an opportunity to justify

the change in the structural materials from metal to wood. At

that time, it could have provided DOT with a copy of the local

building code, explaining why the structural change was needed.

It did not do so, nor did Lamar present any non-hearsay evidence

to prove that fact at final hearing. Lamar's purported basis

for making the structural change is not supported in the record.

27. The Joint Stipulation of Settlement provided, at

paragraph 4.a., "Exceptions to pre-storm specifications will be

allowed to the extent required to comply with local building

codes." However, absent evidence of what the local building

code provides, Lamar is not entitled to an exception under this

portion of the settlement.

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 Permit No. 7478 for Tag

No. BH378 and requiring removal of the Sign within 30 days.

DONE AND ENTERED this 26th day of March, 2008, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of March, 2008.

ENDNOTES

1/ There is no apparent disagreement between the parties that

the Sign was repaired pursuant to the global settlement

agreement, but no one provided information as to how it came to

be rebuilt prior to the settlement agreement being signed.

2/ The Notice advises Lamar that "Requesting an administrative

hearing will not stay revocation of the permit nor increase the

time allowed to correct the violation." That statement flies in

the face of Section 479.08, Florida Statutes (2007), which

specifically states that the revocation becomes final 30 days

after the entry of the final order. Obviously, no final order

can be entered until after the administrative hearing and entry

of a recommended order.

3/ Although the Administrative Law Judge may have taken official

recognition of the building code had it been offered, it was not

presented by either party.

4/ All references to Florida Statutes herein shall be to the

2007 version.

5/ A copy of the December 2007 version of this rule was

presented to the undersigned by DOT during the final hearing.

However, that rule did not come into existence until after the

Notice had been issued in this case. The rule cannot be

retroactively applied and is not pertinent to this proceeding.

6/ The rule does not specifically refer to modifying a sign from

metal to wood, but a reasonable inference can be drawn that the

language of the rule would include such a change.

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

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

James C. Myers,

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

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.