STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1430

)

FOSTER AND KLEISER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 22, 1977, in the Conference Room, Department of Transportation District A Office, Bartow, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on an Administrative Complaint filed by the Department of Transportation against Foster and Kleiser alleging that Foster and Kleiser had erected outdoor advertising signs too close to the right of way and paved roadway of I-275 contrary to Rule 14-10.06.

The Department of Transportation presented evidence that the sign in question is within 500 feet of an off-ramp on I-275 Foster and Kleiser presented evidence that they had erected these signs after "approval" of the location by the Department of Transportation, and argued that the Department of Transportation should not be permitted to require it to be removed.

Proposed findings of fact have been considered and incorporated in this Recommended Order.

APPEARANCES

For Petitioner: John D. Rimes, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Horace A. Andrews, Esquire

602 Florida National Bank Building St. Petersburg, Florida 33701

FINDINGS OF FACT

1. Foster and Kleiser are the owners of signs located on I-275 at the off- ramp of 54th Avenue, Pinellas-Hillsborough Cloverleaf. These signs are 198 feet from the beginning of the pavement adjacent to the signs and 15 feet from the right of way. The location is in an unincorporated portion of Pinellas County.

2. On December 22, 1972, Ace Outdoor Advertising Co., Inc., the predecessor in interest of Foster and Kleiser as regards this sign, sought and received a permit for the construction of a sign located at "I-75. . .five miles north of St. Petersburg." These permit numbers have been renewed every year until the present with Foster and Kleiser succeeding in interest to Ace Outdoor Advertising Co., Inc. through purchase in 1976.

   
   

3. In late 1972, two members of the Department of Transportation, a Mr. Boger (an outdoor advertising inspector now deceased) and Mr. Moran along with Mr. Arthur Hempel, the President of Ace Outdoor Advertising Co., Inc. looked over the area in Pinellas County where the sign was intended to be constructed.

   
   

4. At that time Mr. Hempel showed Mr. Boger and Mr. Moran the general area in which the sign would be erected, said area being a strip of approximately 1500 feet fronting I-275 just north of the 54th Avenue North cutoff.

   
   

5. No specific site for the sign was stated to Mr. Moran or Mr. Boger and it was pointed out by the DOT personnel that a zoning change would have to be accomplished to permit any sign to be constructed. This rezoning was later made by the County Commission and the land in question was changed from A-1 (agricultural) to CP (Commercial Parkway) in 1973.

   
   

6. The sign in question was not erected until on or about June 21, 1977, and is located approximately 198 feet north of the widening for the beginning of the off-ramp at the 54th Avenue North interchange of Interstate 275 in Pinellas County.

   
   

7. Prior to the promulgation of Rule 14-10 the Department used as its rule and regulation regarding spacing of signs the Agreement between the Governor of the State of Florida and the United States Department of Transportation, which is now set forth verbatim in Rule 14-10.06 which was adopted in April 1977. The Agreement was enforced by the Department prior to 1976 when it was adopted as a rule.

   
   

8. On or about July 27, 1977, the Department cited Respondent Foster and Kleiser for a violation of F.S. 479.02 and Rule 4-10.06 for having erected an outdoor advertising sign within 500 feet of the widening of the pavement at the exit from I-75.

   
   

   CONCLUSIONS OF LAW

   
   

9. The testimony clearly shows that the sign in question is located within

   500 feet of the 54th Avenue North exit from I-275 in Pinellas County, said 500 feet being measured by the criteria set forth in Rule 14-10.06 "Spacing of Signs" (2)(b). Furthermore, there is no question but that the sign was erected subsequent to the promulgation of Rule 14-10.06.

   
   

10. It is further clear that the "Governor's Agreement" was entered into pursuant to F.S. 479.02 and 479.025 on January 27, 1972. Furthermore, under

    F.S. 479.02(1) and (2), the Department was charged with enforcing the provisions of Chapter 479 as regards outdoor advertising signs, said provisions specifically including the Governor's Agreement adopted and ratified pursuant to F.S. 479.025.

    
    

11. Therefore, it becomes apparent that the sign erected by Foster and Kleiser on June 21, 1977, but for some statutory or equitable exception, would

    be an illegal, nonconforming sign and subject to removal under 479.17. There is no statutory exception for this sign under Chapter 479.

    
    

12. Foster and Kleiser urge that the Department is estopped from asserting the illegality of the sign in question since a permit had been issued in December, 1972, and subsequently renewed which encompassed generally the area in which this sign was erected in 1977. It is clear that no sign existed on the site prior to June, 1977. The estoppel of DOT to enforce Rule 14-10.06 is based upon a conversation between the President of Foster and Kleiser's predecessor in interest, Ace Outdoor Advertising, Inc., and departmental employees, in which these departmental employees pointed out that construction of the sign was dependent upon rezoning of the area.

    
    

13. The standard for asserting and gaining an estoppel against a state agency is extremely rigid. This permit was obtained in 1972, but construction not approved because of improper zoning. Rezoning was accomplished in 1973 which would permit construction of a sign. The sign itself was constructed in June, 1977, several months after the Rule 14-10.06, Florida Administrative Code, was adopted restricting construction within 500 feet of interchanges to interstate highways. The initial permit would have presumably permitted construction anywhere within the 1500 foot corridor provided, however, the zoning prohibited construction. Rezoning was a condition precedent to any construction. The representations of the DOT employees cannot be construed to estop the Department from enforcement of other regulations concerning placement of signs. Foster and Kleiser and their predecessor, Ace, took no action to construct the sign until after Rule 14-10.06 was promulgated. They were on notice that the sign could not be constructed within 500 feet of the interchange at the time construction commenced. Their original permit was not voided by the adoption of the rule, but it was restricted to require construction within the 1500 foot corridor in accordance with the rule. In any event, the facts do not present any basis for estoppel of DOT from enforcement, and the rule existed prior to the sign which does not conform with the rule.

    
    

14. The evidence in this case shows that Foster and Kleiser, in erecting their sign within 500 feet of the exit ramp of I-275, are in violation of Rule 14-10.06 and F.S. 479.02. It must be concluded that Foster and Kleiser have continued a public and private nuisance since June 21, 1977. As a public and private nuisance, said sign must be removed under F.S. 479.17.

RECOMMENDATION

For the reasons stated above and in the light of the applicable law, since the sign in question is nonconforming and since currently valid permits have not been issued for the site at which it was erected in June, 1977, it is illegal, cannot be permitted and should be removed.

DONE and ORDERED this 28th day of March, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1978.

COPIES FURNISHED:

John A. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Horace A. Andrews, Esquire

602 Florida National Bank Building St. Petersburg, Florida 33701

Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

================================================================= AMENDED AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

FLORIDA DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 77-1430

FOSTER AND KLEISER,

Respondent.

/

AMENDED FINAL ORDER

Having reviewed and considered the complete record in this cause, the Finding of Fact of the Hearing Officer as set out in the Recommended Order dated March 28, 1989, are hereby adopted by the agency; and in addition the agency makes one further Finding of Fact:

1. Although the Notice of Violation dated July 27, 1977 charged Foster and Kleiser with violating Section 479.02, Florida Statutes, Rule 14- 10.06, Florida Administrative Code, Title 23, Section 131 U. S. Code, Para. 2(B), counsel for the Department of Transportation stipulated at the hearing held on November 22, 1977, that Foster and Kleiser would be tried only for the alleged violation of Rule 14-10.06, F.A.C.

The Conclusions of Law of the Hearing Officer as set out in the Recommended Order dated March 28, 1978 are found to be correct except insofar as the Conclusions of Law finds a violation of Section 479.02, Florida Statutes, and subject to that exception, are hereby adopted by the agency.

Respondent's Motion for Merger is denied. However, in light of the stipulation of counsel for the Department at the hearing on March 28, 1978 that Foster and Kleiser would be tried only for an alleged violation of Rule 14- 10.06, F.A.C., and of the Final Order in DOAH Case No. 77-2222R finding Rule 14- 10.06, F.A.C., invalid because not timely filed with the Secretary of State and of the pending appeal of that order by the Department to the First District Court of Appeal, (Case No. JJ-433, docketed May 2, 1978), the Recommendation of the Hearing Officer shall be stayed until the appellate proceedings in the First District Court of Appeal, (Case No. JJ-433, docketed May 2, 1978), regarding the validity of Rule 14-10.06, F.A.C., are concluded. If the First District Court of Appeal reverses the findings of the Hearing Officer in DOAH Case No. 2222R and finds Rule 14-10.06 valid in all respects, the sign shall be subject to removal forthwith. If the First District Court of Appeal sustains the finding of the Hearing Officer and finds Rule 14-10.06 invalid, the Department shall enter its order withdrawing the Notice of Violation sent Foster and Kleiser on July 27, 1977.

DONE AND ORDERED this 3rd day of November, 1978.

TOM B. WEBB, JR. SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32304

COPIES FURNISHED:

Honorable K. N. Ayers Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Mr. Carroll Webb Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

304 East Gaines Street Tallahassee, Florida 32304

Horace A. Andrews, Esquire

602 Florida National Bank Building St. Petersburg, Florida 33701

John A. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 77-001430

Orders for Case No: 77-001430