STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DON BELL and COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1496T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

LAMAR-EAST FLORIDA OUTDOOR )

ADVERTISING, )

)

Additional Party. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 29, 1982, in Deland, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the Department of Transportation's denial of Petitioner's application for outdoor advertising sign permits and Petitioner's subsequent request for a formal hearing.

APPEARANCES

For Petitioner: Ted Doran, Esquire

100 Seabreeze Boulevard, Suite 130 Post Office Box 2134

Daytona Beach, Florida 32015

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

For Additional Edward M. Keating, Manager

Party: Lamar-East Florida Outdoor Advertising 2801 South Ridgewood Avenue

South Daytona, Florida 32019

The parties stipulated to the facts at issue in this matter and filed their Prehearing Stipulation, which was read into the record at hearing. The ultimate issue is whether the application by Don Bell and Company should be approved.

This is determined by whether the permit issued to Lamar-East Florida Outdoor Advertising is valid. The Department of Transportation and Lamar-East Florida Outdoor Advertising take the position that the Lamar permit is valid. Don Bell and Company asserts the permit was issued in error and invalid ab initio. If the Lamar permit is determined to be invalid, the Department of Transportation

admits that Don Bell and Company's application would have been approved and is now an approvable sign site.

The parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. A sign advertising "Kapok Tree" in Daytona Business Park was permitted by the Department of Transportation (Department) at the intersection of Ventress Boulevard and U.S. Highway 92 (hereinafter referred to as the Kapok Tree sign).

   
   

2. Lamar-East Florida Outdoor Advertising (Lamar) applied for an outdoor advertising permit for a sign to be located at Bill's Fruit Stand, 380 feet east from the Kapok Tree sign.

   
   

3. The Department processed the Lamar application and issued a permit for said sign, although the Lamar sign was within the proscribed distance (500 feet) of the Kapok Tree sign. The Department conducted an on-site inspection, and the inspector failed to notice the Kapok Tree sign. The Department would not have issued the Lamar permit had the Kapok Tree sign been noted. The Kapok Tree sign had its permits displayed.

   
   

4. Thereafter, Don Bell and Company (Bell) applied for an outdoor advertising permit for a sign located approximately 30 feet from the intersection of Bayless Avenue and U.S. Highway 92, 480 feet from the Lamar sign location, and 810 feet from the Kapok Tree sign.

   
   

5. The Department denied Bell's application because that sign location was less than 500 feet from the Lamar sign location.

   
   

6. Neither Lamar nor Bell have constructed signs at the subject locations for which they have applied for permits, although lease payments have been made by both Lamar and Bell.

   
   

7. Both the Kapok Tree sign and Lamar have current permits, and Bell challenges the validity of the Lamar permit.

   
   

8. But for its distance from the Lamar sign site, the Department would approve the Bell application.

   
   

9. All parties stipulate that the Lamar notarized and certified application recites there is no sign within 500 feet of its site, when in fact the Kapok Tree sign was and is 380 feet from Lamar's site.

   
   

10. Administration of outdoor advertising is dependent upon the representations made by an applicant in its application and the verification of said data by on-site inspection by the Department's inspector in issuing outdoor advertising permits.

    
    

11. The Kapok Tree sign is not an on-premises sign.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction to hear this cause and enter a recommended order pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to issue outdoor advertising permits pursuant to Chapter 479, Florida Statutes.

    
    

13. The record reflects that the sole basis for denial of Bell's application for an outdoor advertising permit is that the proposed sign would be within the proscribed distance from a sign which the Department admits it permitted erroneously. In fact, the permit issued erroneously is not valid even if, because of its own error, the Department is estopped to deny its invalidity in an action between that sign's owner and the Department. The Department cannot raise its being estopped to deny the validity of the sign to assert that it is validly permitted. It is not validly permitted.

    
    

14. The doctrine of estoppel is a shield to be used by the first sign's owner and not a sword to be used by the Department. The application of an estoppel argument to assert the "validity" of the first sign penalizes the Petitioner, who has done nothing wrong and who is denied its legitimate right to erect a sign. Clearly, such a policy would create much mischief and open the way for miscreants to avoid the application of statutes to the detriment of innocent third parties. Therefore, the first sign is factually, invalidly permitted as it relates to Petitioner and the Department, and the Petitioner's application should be approved because there are no other grounds for denial.

RECOMMENDATION

Having found that there are no valid grounds for denial, it is recommended that the Petitioner's application for an outdoor advertising permit be approved.

DONE and RECOMMENDED this 22nd day of December, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 22nd day of December, 1982.

COPIES FURNISHED:

Ted Doran, Esquire

100 Seabreeze Boulevard, Suite 130

Post Office Box 2134

Daytona Beach, Florida 32015

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Edward M. Keating, Manager Lamar-East Florida Outdoor

Advertising

2801 South Ridgewood Avenue South Daytona, Florida 32019

Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 82-001496

Orders for Case No: 82-001496