Judges: WILLIAM B. THOMAS
Agency: Department of Transportation
Latest Update: Jul. 31, 1986
Summary: Removal of sign ordered. Respondent failed to show permits. Respondent not entitled to compensation. No property right in illegal sign.
81-3137STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NOS. 81-3137T
) 81-3138T
T. LEGG AND COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on April 11, 1986, in Miami, Florida. The parties reguested 21 days after the filing of the transcript to submit proposed findings of fact and conolusions of law. The transcript was received on May 13, 1986, but nothing has been submitted by the parties.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064
For Respondent: Charles C. Papy III, Esquire
201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134
FINDINGS OF FACT
The Respondent, E. T. Legg and Company, owns the sign which is the subject of this proceeding, located on U.S. 441 or S.R. 7, approximately 1,117 feet north of Snake Creek Canal in Dade County, Florida. The sign faces north and south.
The Department issued permits for a sign in 1979, one for the north face and one for the south face. These permits authorized a sign on U.S. 441 (State Road 7), approximately 550 feet north of Snake Creek Canal in Dade County, Florida. It is not clear from the record whether these permits were issued for the subject sign or for another sign but the permit tags issued for these permits were affixed to the subject sign until these tags were stolen.
The Respondent's permit applications stated that the sign to be erected would be located 500 feet from the nearest existing sign. Subsequent to the Department's issuance of the permits for the subject sign, it determined that the Respondent's sign had been built closer than 500 feet from the nearest sign. The Respondent stipulated that there is less than 500 feet between the subject sign and the sign nearest to it.
The sign nearest the subject sign is also owned by the Respondent. It is a two-faced permitted structure located south of the subject sign, and it was in place when the subject sign was erected.
In 1981, the Respondent applied for tags to replace the permit tags the Department had issued pursuant to the 1979 application. These tags had been stolen. Replacement tags were not issued by the Department for the reason that it had determined the subject sign to be in violation of the spacing rule requiring 500 feet between signs. Permit fees had been paid by the Respondent through the year 1981.
In October of 1981, the Department initiated this proceeding, charging the Respondent with violations of Chapter 479, Florida Statutes for not displaying permit tags on the subject sign, and for violating the spacing rule by locating this sign within 500 feet of an existing sign.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has regulatory authority over outdoor advertising signs as prescribed by Chapter 479, Florida Statutes, and rules promulgated thereunder.
Rule 14-10.06(1)(b)3. and Rule 14-10.09(2), Section III under spacing of signs, Florida Administrative Code, prohibits the erection of an outdoor advertising sign less than 500 feet from another sign on the same side of the highway facing the same direction. If the Respondent's sign which is the subject of this proceeding is in violation of these rules, it may be removed.
The parties stipulated that the distance between the two signs in less than 500 feet, but this Stipulation does not place the two signs on the same side of the highway facing the same direction. Nor is there any direct evidence that the two signs face the same direction on the same side of the highway. Therefore, unless these elements can be supplied by inference from the facts in evidence, the charge that the subject sign violates the spacing rule must be dismissed.
The subject sign and the one it is alleged to be in conflict with because of a spacing violation are both two-faced signs. The Respondent's permit applications which are in evidence show the subject sign to face north and south. However, there is no evidence to show which directions the faces of the other sign face, or that these signs are both visible to the same traffic on the highway.
The sign nearest the subject sign is located south of the subject sign. However, there is no evidence to show on which side of the highway the sign south of the subject sign is situated. Neither is there any evidence from which this element may be inferred.
Consequently, although the subject sign is less than 500 feet from the sign to the south, it may not be concluded that this is a violation of the above spacing rules because it cannot be determined from the evidence that these signs are on the same side of the highway and that they face the same direction. Therefore, there is not competent, substantial evidence to support the charge that the subject sign violates the above spacing rules, and this charge should be dismissed.
The remaining charge is that the Respondent's sign does not have affixed to it permit tags as required by Section 479.07(4), Florida Statutes (1981). Nevertheless, the Department issued tags which were affixed to the subject sign until they were stolen. The fees for these tags were paid through 1981. The Respondent applied for replacement tags, but the Department would not issue them. Thus, the Respondent has not violated Section 479.07(4), Florida Statutes (1981) requiring permit tags on outdoor advertising signs. The Respondent has been prevented from complying with this statute. This charge should be dismissed also.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order dismissing these
charges against the Respondent, E.T. Legg and Company, subject to payment by the Respondent of all permit fees due for the years 1982 through 1986.
THIS RECOMMENDED ORDER entered this 31st day of July, 1986 at Tallahassee, Leon County, Florida.
WILLIAM B. THOMAS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986.
COPIES FURNISHED:
Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064
Charles C. Papy III, Esquire
201 Alhambra Circle Suite 502
Coral Gables, Florida 33134
Hon. Thomas E. Drawdy Secretary
Department of Transportation
562 Haydon Burns Bldg. Tallahassee, Florida 32301
A. J. Spalla, Esquire General Counsel
562 Haydon Burns Bldg.
Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NOS. 81-3137T
81-3138T
E. T. LEGG AND COMPANY,
Respondent.
/
FINAL ORDER
The Record in this consolidated proceeding has been reviewed along with the Recommended Order of the Hearing Officer dated July 31, 1986 (copy attached).
Of concern to the Department is the fact that Petitioner's Exhibits 1 and 2 are missing and insufficiently identified in the record to determine which set of applications were introduced. However, this does not impair the resolution of the controversy and the following conclusions. On August 15, 1986, the Department as Petitioner filed exceptions to the Recommended Order. The Findings of Fact of the Hearing Officer are supported by competent substantial evidence. Stipulations of the parties support additional findings of fact based on the record as a whole. The Department rejects the Hearing Officer's Conclusion of Law that the Department failed to prove the structure illegal.
By stipulation the parties agreed that the subject sign is less than five hundred (500) feet from the E. T. Legg structure bearing State Permit Number 1321-12 and 1322-12. (T: 8) Inherent in the stipulation of spacing problems is the determination that the signs are on the same side of the highway. Otherwise there was no need or purpose for the stipulation. Further, Roy Cooper, President of E. T. Legg and Company, confirmed an accurate description of the location of the subject sign to be 550 feet north of Snake Creek west side. (T:
The signs face north and south so that the terms "west side" could only mean the west side of the highway.
The Department rejects the Hearing Officer's conclusion of law that the Department failed to prove the sign structure illegal. The Department proved the subject signs did not display current outdoor advertising state permits when cited in 1981; thereby establishing a prima facia case that the structure is illegal. In pertinent part Section 479.07, Fla. Stat. (1981), provides:
Except as in this chapter otherwise provided, no person shall construct, erect,
operate, use, maintain,...any outdoor adver- tising structure,...without first obtaining a permit therefor....
(4) The construction, erection, use or maintenance of any advertising structure...
which is required by this chapter to be permitted ted, without having affixed thereto a currentlu valid permanent permit tag shall be prima
facie evidence that the same has been con- structed or erected and is being operated, used or maintained in violation of the provi- sions of this chapter, and shall be subject to removal by legal representatives of the department....
When the Department presented evidence showing that no permit tags were affixed to the sign in question, a statutory presumption arose that the signs were illegally erected, thereby placing the burden of proving entitlement to a state permit upon the Respondent. Henderson Sign Service v. Department of Transportation, 390 So.2d 159 (Fla. 1st DCA 1980).
The Hearing Officer found that the tags issued for the applications marked Exhibits 1 and 2 were not proven to have been issued for the subject sign site but were previously attached to the structure anyway. The display of a permit tag at one location when the permit was actually issued for a different location does not satisfy the requirements of law. The burden of proof was upon the Respondent to prove that a permit had been issued for the particular site in controversy since the lack of a displayed permit for the site establishes a prima facie case that the sign is illegal.
The Hearing Officer found the permits issued earlier for the applications specifying a different site were subsequently stolen from the subject structure. The examiner further found that Respondent's application for replacement tags was denied. Under the law replacement tags can only be issued for the location shown on the applications and not for the location of the structure in this controversy unless the sign is located at the site stated on the application.
It is not.
Respondent failed to prove the prior issuance of permits for the specific sign site in this controversy and made no attempt to prove the present structure location to be permittable under either the provisions of Chapter 479 prior to 1985 or under the current law. Any payment of permit fees on the "stolen permits" would be for the location shown on the applications, Petitioner's Exhibits 1 and 2, and would have no bearing on the actual sign location in this Cause. Therefore the Hearing Officer's recommendation would not resolve the issues.
The principal of equitable estoppel as proposed by Respondent is not applicable to the factual situation present in this proceeding. The essential elements of estoppel are (1) a representation by the party to be charged of a material fact that is contrary to a later asserted position, (2) reliance on this representation, and (3) a change of position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Kuge v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984). In this case, the Department made no representation upon which Respondent relied. Any action by the Department was based solely on the
representations of Respondent as contained in the original permit applications for a site which was different from the present location of the sign structure. A sign structure built without a legal permit does not form the basis for reliance. The third element of estoppel requires a detrimental change of position to the party claiming estoppel. Since the date that Respondent erected its unpermitted sign, the rent and other benefits of the use of the sign have been enjoyed by Respondent. No detriment to Respondent has been caused by the Department.
Consequently, Respondent is not entitled to compensation for the removal of its signs. No property right is involved when the government seeks to remove an unlawful outdoor advertising sign erected in disregard of the established scheme of securing permits for such structures. Department of Transportation v.
Durden, 471 So.2d 1271 (Fla. 1985).
ACCORDINGLY, it is ordered that the subject sign structure of this case owned by Respondent E. T. Legg and Company, located on U.S. 441 or State Road 7, approximately 1,117 feet north of Snake Creek Canal is illegal and shall be removed within 30 days of this Order.
DONE AND ORDERED this 29th day of October, 1986.
THOMAS E. DRAWDY
Secretary
Department of Transportion Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32301
Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Copies furnished to:
William B. Thomas, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Charles C. Papy, III, Esquire
201 Alhambra Circle, Suite 502 Coral Gables, Florida 33134
Charles G. Gardner, Esquire Haydon Burns Building, MS 58 Tallahassee, Florida 32301
Docket for Case No: 81-003137
Orders for Case No: 81-003137
| Issue Date |
Document |
Summary |
|
Oct. 29, 1986 |
Agency Final Order
|
|
|
Jul. 31, 1986 |
Recommended Order
|
Removal of sign ordered. Respondent failed to show permits. Respondent not entitled to compensation. No property right in illegal sign.
|
