09-005187 Woody Drake Advertising, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Thursday, January 7, 2010.

Summary: Petitioner was entitled to re-erect its non-conforming outdoor sign since it was not "destroyed" as defined by Florida Administrative Code Rule 14-10.007(6)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WOODY DRAKE ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) Case No. 09-5187

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on November 18, 2009, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Claude Ridley Walker, Esquire

Guilday, Tucker, Schwartz & Simpson, P.A.

1983 Centre Pointe Boulevard, Suite 200

Tallahassee, Florida 32308-7823

For Respondent: Kimberly Clark Menchion, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent's Notices of Intent to

Revoke Sign Permit should be upheld.

PRELIMINARY STATEMENT

Respondent, on July 30 and August 3, 2009, issued two

Notices of Intent to Revoke Sign Permit to Petitioner. The

stated grounds for revocation were that Petitioner's sign had

been "destroyed" as defined by Respondent. Fla. Admin. Code R.

14-10.007(6)(a). Respondent asserted that more than 60 percent

of the sign's upright supports had been damaged to the extent

they required replacement. Petitioner timely filed a Petition

for Formal Administrative Hearing on August 28, 2009.

Respondent referred the matter to the Division of Administrative

Hearings for the assignment of an administrative law judge on

September 21, 2009. A Notice of Hearing was issued

September 29, 2009, setting the matter for hearing in

Tallahassee, Florida.

At the hearing, Petitioner presented the testimony of two

witnesses, Jack M. Wainwright, Jr., the owner of Woody Drake

Advertising, Inc., and Walter Grimes, the owner of Grimes

Cranes; and offered one exhibit, which was admitted into

evidence. Respondent presented the testimony of Lynn Holschuh,

State Outdoor Advertising and Logo Administrator for Respondent

and offered Exhibits 1 through 5, all of which were admitted

into evidence. The parties also presented one joint exhibit,

the Joint Stipulated Pre-hearing Report, which was admitted into

evidence. Official recognition was taken of Lamar Outdoor

Advertising-Lakeland v. Fla. Dep't of Transp. , 17 So. 3d 799

(Fla. 1st DCA 2009), and Florida Administrative Code Rule 14-

10.007.

The Transcript was filed on December 3, 2009. After the

hearing, Petitioner and Respondent filed their Proposed Findings

of Fact and Conclusions of Law on December 23 and December 24,

2009, respectively. Respondent's request to file its Proposed

Recommended Order one day late was granted.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Woody Drake Advertising, Inc., owns and

operates an outdoor advertising sign (the "Sign"), which is

located off Interstate 10 (I-10) in Leon County, Florida, and

bears tag numbers AG329 and AG850.

2. Respondent, Florida Department of Transportation, is

the state agency responsible for regulating outdoor advertising

signs located within 660 feet of the State Highway System,

Interstate, or Federal-aid Primary System (controlled portion)

in accordance with Chapter 479, Florida Statutes.

3. Jack Wainwright, Jr., is the owner and operator of

Petitioner, having purchased the company from his parents

approximately 13 years ago. Mr. Wainwright's family has been in

the business of outdoor advertising since at least 1976.

4. The Sign consists of one structure with two faces and

is located within the controlled portion of I-10, .239 miles

east of Still Creek. The Sign is a non-conforming, wooden, V-

shaped, 12-pole sign.

5. On June 28, 2009, the Sign sustained damage from high

winds associated with a storm.

6. The next day, after being notified of the damage,

Mr. Wainwright went to the sign's location and physically

inspected it.

7. Grimes Cranes is in the business of, among other

things, building and maintaining outdoor signs, such as the Sign

at issue. Walter Grimes has owned Grimes Cranes since 2000.

Mr. Grimes has worked in the business of erecting and

maintaining wooden and metal outdoor advertising signs for

approximately 23 years. On average, Mr. Grimes erects 18-to-20

outdoor advertising signs a year. By his estimate, Grimes

Cranes has moved, erected, or maintained approximately 75

percent of the outdoor advertising signs in Tallahassee,

Florida.

8. Mr. Wainwright contacted Mr. Grimes to obtain an

estimate to repair the Sign. They met at the Sign's location on

either June 30 or July 1, 2009. Based upon his experience and

visual inspection of the uprights, Mr. Grimes concluded that

five of the 12 uprights could be reused when repairing the Sign

as they were neither broken, splintered, nor otherwise damaged.

9. Mr. Grimes concluded that 35-to-40 percent of the total

Sign had been destroyed by the storm. This conclusion was based

upon his personal examination of the Sign and his experience in

maintaining and erecting outdoor advertising signs.

10. After Mr. Grimes' inspection of the Sign,

Mr. Wainwright disassembled the Sign and transported the

materials to his father's farm.

11. Once he disassembled the Sign, Mr. Wainwright assessed

the damage to it. Based upon his knowledge and experience as

owner of Petitioner sign company for the past 13 years,

Mr. Wainwright determined that six of the 12 uprights were

reusable.

12. Although Mr. Grimes intended to use the five uprights

he found to be undamaged in the rebuilding of the Sign, he was

not able to do so because Mr. Wainwright had removed the

uprights from the area. Mr. Grimes determined it was simpler

and more economical to install new uprights on the site rather

than haul the reusable ones from their present location on the

Wainwright family farm.

13. Ms. Lynn Holschuh has been Respondent's State Outdoor

Advertising and Logo Administrator since 1992. While well

educated with both a bachelor's and master's degree in English,

she has not worked in the business of erecting outdoor signs;

has never personally erected an outdoor advertising sign; and

has no personal experience building an outdoor advertising sign.

14. The two Notices issued by Respondent that are the

basis for this action were signed by Ms. Holschuh as the State

Outdoor Advertising and Logo Administrator. The Notices state

Florida Administrative Code Rule 14-10.007(6)(a) as the basis

for the proposed action, alleging that "[m]ore than 60% of the

upright supports have been damaged such that replacement is

required."

15. Ms. Holshcuh never personally inspected the Sign's

uprights and has no personal knowledge as to whether eight or

more of the uprights were damaged such that normal repair

practices of the industry required their replacement. The

Notices were issued after she reviewed photographs taken on

July 7, 2009, by an inspector for Respondent.

16. Ms. Holschuh determined, after inspecting the

photographs, that ten of the Sign's uprights had been damaged

since only two were standing when the inspector took the

pictures. This was an assumption on her part based upon the

photographs, not her personal inspection of the Sign and

uprights following the damage from the storm.

17. Respondent's inspector returned to the site of the

Sign on August 17, 2009, took additional photographs, and noted

that a new 10-pole sign had been erected on the site. The Sign

had been permitted as a 12-pole sign, but had been rebuilt as a

10-pole sign with 10 brand new uprights.

18. Respondent interprets Florida Administrative Code

Rule 14-10.007(6)(a) as requiring that the sign owner use the

poles that are not damaged in rebuilding the sign. Respondent

does not interpret this rule provision to allow the erection of

a completely new sign. Ms. Holschuh admitted that Florida

Administrative Code Rule 14-10.007(6)(a) does not explicitly

require the actual re-use of the non-damaged upright supports

when a non-conforming sign is re-erected.

19. Respondent concedes that as long as 60 percent of the

uprights had not been damaged to the extent that replacement of

the upright supports was required due to the damage, the sign

could be disassembled and re-erected. Ms. Holschuh agreed that

the Sign could have been disassembled and re-erected if no more

than seven of the uprights had sustained damage.

20. Damage to seven of the uprights would constitute 58.33

percent replacement while damage to eight of the uprights would

constitute 66.67 percent replacement.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

22. Respondent has the authority to regulate outdoor

advertising and to issue permits for signs along interstate and

federal primary aid highways pursuant to Chapter 479, Florida

Statutes, and Florida Administrative Code Rule Chapter 14-10.

23. Section 479.02, Florida Statutes, specifically

authorizes Respondent to administer and enforce the provisions

of Chapter 479 and the agreement between Florida and the United

States Departments of Transportation relating to the size,

lighting, and spacing of signs in accordance with Title I of the

Highway Beautification Act of 1965 and Title XXIII, United

States Code, and federal regulations in effect as of the

effective date of the Act.

24. As the party seeking to revoke the sign permit,

Respondent bears the burden to prove its allegation by a

preponderance of the evidence. Fla. Dep't of Transp. v. J.W.C. ,

396 So. 2d 778, 788 (Fla. 1st DCA 1981). "Findings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute, . . . ." § 120.57(1)(j), Fla.

Stat.

25. Subsection 479.02(1), Florida Statutes, gives

Respondent the authority to administer and enforce the

provisions of Chapter 479. An agency is afforded wide

discretion in the interpretation of the statute which it

administers. Republic Media v. Dept. of Transp. , 714 So. 2d

1203, 1205 (Fla. 5th DCA 1998); Atlantic Outdoor Advertising v.

Dep't of Transp. , 518 So. 2d 384, 386 (Fla. 1st DCA 1987), rev.

den. , 525 So. 2d 876 (Fla. 1988); Natelson v. Dep't of Ins. , 545

So. 2d 31, 32 (Fla. 1st DCA 1984), pet. for rev. den. , 461 So.

2d 115 (Fla. 1985).

26. The parties stipulated that the original sign was non-

conforming and consisted of 12 poles. The parties further

stipulated that the Sign re-erected by Petitioner consisted of

10 new poles and did not re-use the poles that were damaged by

the storm.

27. Florida Administrative Code Rule 14-10.007(6)

provides, in relevant part, as follows:

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) "Destroyed" means more than 60% of

the upright supports of a sign structure are

physically damaged such that normal repair

practices of the industry would call for, in

the case of wooden sign structures,

replacement of the broken supports . . . .

28. The eyewitness accounts by Mr. Wainwright and

Mr. Grimes, both experienced in the outdoor advertising sign

business, prove that at least five of the upright poles for the

Sign were not destroyed or damaged by the storm and were,

therefore, suitable for use in erecting the new sign.

Respondent's testimony, based upon photographs taken after the

sign had been partially disassembled and removed to another

location, and taken more than a week after the damage occurred,

is not entitled to as much weight. The greater weight of the

evidence supports Petitioner's position that less than 60

percent of the sign was damaged, therefore entitling it to re-

erect the non-conforming sign pursuant to Florida Administrative

Code Rule 14-10.007(6)(a).

29. Since it has been established that less than 60

percent of the Sign was destroyed, thus entitling Petitioner to

re-erect the non-conforming sign on the existing site, the

discussion must turn to the agency's interpretation of Florida

Administrative Code Rule 14-10.007(6)(a).

30. Respondent interprets Florida Administrative Code

Rule 14-10.007(6)(a) to require the actual re-use of the upright

supports when a non-conforming sign is re-erected. Ms. Holschuh

admitted that this Rule does not explicitly require this.

Petitioner argues that Respondent has imposed an additional

requirement applicable to all non-conforming signs in Florida.

As such, this provision is being applied like a rule, yet it has

not been promulgated as a rule pursuant to the requirements of

Chapter 120, Florida Statutes. The Petition in this matter did

not include a challenge to the statement as an unpromulgated

rule. Respondent was not put on notice that such a challenge

would be part of this proceeding until the commencement of the

hearing, and the agency did not waive proper notice and its due

process rights. Hence, Petitioner was not permitted to present

an alleged challenge to this unadopted rule at hearing.

Accordingly, Petitioner filed a Petition for Determination of

Agency Statement as Unadopted Rule and Petition to Determine the

Invalidity of an Existing Rule on December 22, 2009 (DOAH Case

No. 09-6971RU), and that case will proceed in due course.

31. The only issue that remains for determination here is

whether Florida Administrative Code Rule 14-10.007(6)(a)

requires Respondent to re-use the undamaged uprights in the re-

erection of its non-conforming sign. The Rule clearly and

unambiguously defines "destroyed" as when more than 60 percent

of the upright supports (the poles) are damaged to the point

where they cannot be re-used. The greater weight of the

evidence in this case supports the finding that less than 60

percent of the poles were "destroyed." Therefore, Petitioner

had the legal right to re-erect the sign at issue in this

matter. The fact that Petitioner chose to use new poles rather

than re-use the old, undamaged poles, was based upon financial

and logistical reasons as described by the sign erection

witness, Mr. Grimes. According to Mr. Grimes, it was easier to

haul in 10 new poles from one location than to haul the usable

old poles from the farm and the new poles from the lumber yard.

This was a business decision between Mr. Grimes and

Mr. Wainwright and not relevant to the issue of whether the old

poles had to be re-used. Accordingly, once it was established

that less than 60 percent of the uprights had been destroyed by

the storm, Petitioner acted within its statutory rights to

rebuild the Sign using old materials or new.

32. Since the Notices of Intent to Revoke the Sign Permit

did not inform Petitioner that Respondent took issue with

whether a 10-pole sign could be erected in place of a 12-pole

sign, and no admissible evidence was produced on this point,

Petitioner was within its rights in erecting the 10-pole sign to

replace the previous sign.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Department of Transportation

enter a final order dismissing the Notices of Intent to Revoke

Sign Permit.

DONE AND ENTERED this 7th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of January, 2010.

COPIES FURNISHED :

Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

Claude Ridley Walker, Esquire

Guilday, Tucker, Schwartz & Simpson, P.A.

1983 Centre Pointe Boulevard, Suite 200

Tallahassee, Florida 32308-7823

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie C. Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

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

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.