STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0675T

)

DOWDEN FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 13, 1984, at Bartow, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: James L. Livingston, Esquire

Post Office Box 1068 Sebring, Florida 33870

By Notice of Alleged Violations dated January 10, 1984, the Department of Transportation, Petitioner, seeks to have Dowden Funeral Home's sign located on

1. 17, 0.25 mile northeast of U.S. 27 removed. As grounds therefor it is alleged the sign does not have a permit and is unpermittable because it is located within 500 feet of an existing sign along U.S. 17 facing in the same direction.

   
   

   At the hearing Petitioner called two witnesses, Respondent called one witness, and six exhibits were admitted into evidence. Proposed findings submitted by the parties, to the extent incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

   
   

   FINDINGS OF FACT

   
   

   1. On January 7, 1980, Dowden Funeral Home, Respondent, obtained a building permit from Highlands County (Exhibit 4), to construct a wooden sign along U.S. 17 near Sebring, Florida; and thereafter constructed a 20-foot by 14- foot sign along U.S. 17, 0.25 mile northeast of U.S. 27. The location is just outside the city limits of Sebring, Florida, and U.S. 17 is a federal-aid primary highway.

   2. Respondent's sign is located approximately 200 feet from a Barnett Bank sign which was permitted and erected in 1977 (Exhibit 6).

      
      

   3. Respondent's witness contends that when he obtained the building permit and inquired if additional permits were needed to erect this sign, he was told no by the county building officials.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   5. Section 479.07(1), Florida Statutes, provides that no person shall erect an outdoor advertising sign in this state without first obtaining a permit from the Florida Department of Transportation.

      
      

   6. Section 479.02(1)(b), Florida Statutes, provides it shall be the duty of the Department of Transportation, subject to federal regulations, to regulate the spacing of signs permitted in zoned and unzoned commercial and zoned and unzoned industrial areas.

      
      

   7. Rule 14-10.06(b)3, Florida Administrative Code, provides that along federal-aid primary highways no two structures shall be spaced less than 500 feet apart on the same side of the highway facing in the same direction.

      
      

   8. Even if Respondent was advised by county officials that no additional permits were required to erect his sign (and there is no reason to doubt the sworn testimony of this witness), such advice in no wise legitimizes the sign or creates an estoppel against the state. Equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. North American Company v. Green, 120 So.2d 603 (Fla. 1st DCA 1973). Another general rule is that the state cannot be estopped through mistaken statements of law. Revenue v. Hobbs, 380 So.2d 367 (Fla. 1st DCA 1977). In order to demonstrate estoppel, the following elements must be shown:

      
      

      1. A representation that is contrary to a material fact that is contrary to a later asserted position;

      2. Reliance on that representation; and

      3. A change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

         
         

         State, Department of Revenue v. Anderson,

         403 So.2d 397 (Fla. 1981); Greenhunt Con- struction Company v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971).

         
         

   9. Here the alleged misrepresentation was not made by Petitioner or by an agent of Petitioner and, even if such a representation had been made by a state official, it would have been a mistaken statement of law, which is not grounds for estoppel.

      
      

   10. From the foregoing it is concluded that Respondent's sign violates Sections 479.02(1)(b) and 479.07(2), Florida Statutes, and Rule 14-10.06(3), Florida Administrative Code, as alleged and the sign is not permittable. It is

RECOMMENDED that a Final Order be entered directing Dowden Funeral Home to remove its sign along U.S. 17, 0.25 mile northeast of U.S. 27.

ENTERED this 25th day of May, 1984, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984.

COPIES FURNISHED:

CHARLES G. GARDNER, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

JAMES L. LIVINGSTON, ESQUIRE POST OFFICE BOX 1068 SEBRING, FLORIDA 33870

PATRICK GALVIN, ADMINISTRATOR OUTDOOR ADVERTISING DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

PAUL A. PAPPAS, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

Docket for Case No: 84-000675

Orders for Case No: 84-000675