vs. ) CASE NO. 84-1290T
) T & L MANAGEMENT, INC., and ) WILLIAM M. TERRY, d/b/a )
Respondent. )
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 June 20, 1985, in Pensacola, Florida. Subsequently, the Respondent submitted proposed findings of fact and conclusions of law which have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
For Petitioner: Maxine F. Ferguson, Esquire
For Respondent: Michael D. Smith, Esquire
By letter dated February 27, 1984, the Department notified the Respondent's assignor, Lamar Advertising Company, that permits numbered AH998-10 and AH999-10 for a sign to be located in Escambia County on the north side of I-10, approximately 1.78 miles west of U.S. 29, were in violation of Chapter 479, Florida Statutes, and Rule 14-10.09, Florida Administrative Code. The Department seeks to revoke these permits pursuant to Section 479.08, Florida Statutes, on the grounds that there is an absence of commercial activity within the required distance of the permitted site to qualify this location as an unzoned commercial or industrial area pursuant to Sections 479.11 and 479.111, Florida Statutes, and Rule 14-10.09, Florida Administrative Code. Thus, the issue is whether the subject permits should be revoked because the location is not within an unzoned commercial or industrial area.
Lamar Advertising Company was issued permits numbered AH998-10 and AH999-10 on or about October 11, 1982. These permits were for the erection of a sign on the north side of I-10 approximately 1.78 miles west of U.S. 29 in Escambia County, Florida. They were issued because of the existence of an auto paint and body shop within 800 feet of the proposed sign location.
When Lamar Advertising Company submitted the applications for the subject permits it designated thereon that the proposed location was within 800 feet of a business. These applications also certified that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes.
In February of 1984, Lamar Advertising Company was advised that the subject permits were being revoked because of the absence of any visible commercial activity at the permitted location. Subsequently, Lamar Advertising Company requested an administrative hearing pursuant to this notice.
Effective on June 30, 1984, Lamar Advertising Company assigned the subject permits to the Respondent. By letter dated September 25, 1984, the Department advised Lamar that the subject permits had been transferred to the Respondent subject to pending litigation.
Prior to the issuance of the subject permits to Lamar Advertising Company, the site was inspected by the Department's outdoor advertising inspector, who is presently employed by the Respondent. Before this field inspection the inspector had been informed that a paint and body shop was located in the area, and this business was shown on a sketch submitted with the Lamar applications. When the inspector viewed the site from the interstate, she observed an area where several cars were parked and also saw someone working on a car. She measured the distance from the area where the parked cars were, to the proposed sign site, with her car odometer. No other measurements were made at this time. The inspector made no inquiry of anyone at this location regarding whether or not an automobile paint and body business was actually being conducted there. Nevertheless, she approved the subject permit applications based upon the existence of such a business.
Willie James Pritchett who resides at the site of the subject automotive business, is employed by Pensacola Paint & Body, but he does conduct a business known as "Willie's Paint and Body" at this location. Mr. Pritchett's business is such that he works on cars in the back yard of his residence a couple of hours in the evening after work and on the weekends. A detached three stall garage is located behind Mr. Pritchett's residence. The business does not have a telephone listing separate from the residence, and all bookkeeping is conducted at the Pritchett home. Before the Department's inspector became employed by the Respondent, she arranged with Mr. Pritchett for the erection of a small on-premise sign, visible from I-10, advertising Willie's Paint and Body Shop. The phone number listed on this sign is the number of the Pritchett residence. The sign was furnished to Mr. Pritchett by the Respondent, and was erected around the first of February, 1985.
If one were looking at the right spot, the Pritchett property is visible from I-10, but is almost completely obstructed by trees. The immediate area is residential in nature. There is nothing about the Pritchett property that would indicate to a traveler on I-10 that anything other than a residence is located at this site, even if the traveler were to see the entire property from the interstate.
Mr. Pritchett produced occupational licenses for the periods October, 1977 - September, 1980, and October, 1983 through September, 1985. He testified that "the times I didn't have the license I wasn't in business". Consequently, in the month of October, 1982, when the subject permits were issued, Mr. Pritchett was not conducting an automotive paint and body business.
The Department's present outdoor advertising inspector made several measurements at this location with the standard roller tape used by the State. The distance as measured along the pavement of I-10 from the location of Willie's Paint and Body Shop to the closest point at which the Respondent could locate its sign is either 890 feet or 920 feet or 940 feet, depending on how the distance is measured. The Respondent contends that the distance is 781 feet, but the measurements made by the Department's present inspector are accorded the greater weight because of the verification procedures utilized by him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issues permits there for, pursuant to Chapter 479, Florida Statutes.
Section 479.11, Florida Statutes, (1981), provides in part:
No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
within 660 feet of the nearest edge of the right-of-way of all portions of
the interstate system or the federal-aid primary system except as provided in
s. 479.111 . . .
Section 479.111, Florida Statutes, (1981) provides in part:
Only the following signs shall be permitted within controlled portions of the interstate and federal-aid primary systems:
(2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.
Section 479.02, Florida Statutes, (1981), provides in part:
It shall be the function and duty of the department, subject to current federal regulations, to:
Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the Governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 23,
Code.
Determine unzoned commercial and industrial areas; . . .
Section 479.01, Florida Statutes, (1981), and Rule 14 10.09, Florida Administrative Code, set forth the following definitions:
(10) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of
the interstate, federal-aid primary system, or state highway system not zoned by state or local law regulation or ordinance, in
which there is located one or more industrial or commercial activities generally
recognized as commercial or industrial by zoning authorities in this state, except that the following activities may not be so recognized:
Activities not visible from the main-traveled way.
(f) Activities conducted in a building principally used as a residence.
(15) "Maintain" means to allow to exist.
Rule 14-10.02, Florida Administrative Code, provides in part:
. . .(T)he department shall effectively control or cause to be
controlled, the erection and maintenance of outdoor advertising, advertising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .
Rule 14-10.09(2), Section 1(1)(B), Florida Administrative Code, provides in part:
The unzoned commercial or industrial area shall only include those lands on the same side of the highway which are within eight hundred (800) feet of such commercial or industrial activity.
Section 479.08, Florida Statutes, (1984), provides in part:
The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter. . . .
Pursuant to these statutes and rules the Department of Transportation has a duty not only to control the erection of outdoor advertising signs along the interstate and federal-aid primary highways, but also to control the continued maintenance (existence) of these signs. The statutes further authorize the Department to determine what are unzoned commercial and industrial areas.
The Department's former inspector who approved the subject applications apparently acted in reliance on what the diagram accompanying the applications indicated, and on what she expected to find at the site. These expectations led to the erroneous conclusion that the commercial activities of an automobile paint and body business were being conducted there. However, the occupant of the site where this business was supposedly being conducted would not acknowledge that such activity was being performed on this property during the time that the initial inspection was made or when the permits were issued. The photos in evidence show no business activities or even a commercial appearance at the site. Thus, the evidence confirms the error of the inspector in approving the subject applications. Such errors as these are correctable under Rule 14-10.02, Florida Administrative Code, and Section 479.02(1)(c), Florida Statutes.
Accordingly, the Department has reconsidered its issuance of the permits held by the Respondent, and has now determined that the subject area is not commercial in nature, that the business being conducted there in 1982 was excluded by the statutes from qualifying the site as an unzoned commercial location, and that the Respondent's applications for permits did not comply with all of the requirements of Chapter 479, Florda Statutes, when they were submitted. This redetermination by the Department has a rational factual and legal basis, and is thus not clearly erroneous. Agencies are afforded wide discretion in the interpretation of the statutes they administer, and this interpretation should be followed unless it is clearly erroneous. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).
Regardless of whether the Respondent's applications were approved by the inspector and the permits subsequently issued by the Department, the area did not qualify as unzoned commercial when these applications were submitted. Therefore, the statutory prerequisite for the issuance of lawful permits was not present. The proposed site was not in an area which could qualify as unzoned commercial when the Respondent certified on its applications that the signs to be erected would meet all the requirements of Chapter 479, Florida Statutes. Thus, the Department was correct in making its redetermination that the area was not unzoned commercial, and the Respondent's permits may be revoked pursuant to Section 479.08, Florida Statutes.
The Respondent contends that the Department is estopped from revoking its permits, and the case law cited has been considered. The principle of estoppel, however, is not applicable to the factual situation present in this proceeding. The first essential element of estoppel is a representation by the party to be charged of a material fact that is contrary to a later-asserted position: Kuge v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984), Salz v. Department of Administration, Division of Retirement, 432 So.2d 1376 (Fla. 3rd DCA 1983). In this case, the Department made no such representation. Instead, the permits were approved on the representations of the Respondent's assignor as contained in the applications. Consequently, the doctrine of estoppel is not applicable.
Finally, the transfer of the subject permits from Lamar Advertising Company to the Respondent does not affect the situation. The Respondent's position is no better than that of Lamar Advertising Company. Illegal or invalid permits in the hands of Lamar Advertising cannot be vitalized by their transfer or assignment to the Respondent. Shreve Land Co. v. J. & D. Financial Corp., 421 So.2d 722 (Fla. 3rd DCA 1982); Prestress Erectors, Inc. v. James Talcott, Inc., 213 So.2d 296 (Fla. 3rd DCA 1968).
The Respondent also contends that the Department's violation notice only charged that the business of Willie's Paint and Body Shop was not sufficiently visible from the interstate to qualify the area as unzoned commercial, and that thus all other alleged violations are outside the scope of the notice of violation. However, the Department's notice advised that the provisions of Rule 14-10.09, Florida Administrative Code, were violated. This Rule includes the 800 foot distance requirement as well as the exclusion of business activities conducted in a building used principally as a residence. Thus, this contention of the Respondent is without merit.
Based upon the foregoing Findings of Fact and Conclusions of Law, it
Respondent, T & L Management, Inc., authorizing signs on the north side of I-10, approximately 1.78 miles west of U.S. 29, in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed.
THIS RECOMMENDED ORDER entered this 5th day of December, 1985 in Tallahassee, Leon County Florida.
WILLIAM B. THOMAS
Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1985.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-1290T
Petitioner's proposed findings of fact: 1-8 Accepted.
Maxine P. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064
Michael D. Smith, Esquire
Hon. Thomas E. Drawdy Secretary
