STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3737T

)

FUQUA & DAVIS, INC., )

)

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 March 12, 1985, in Chipley, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly.

APPEARANCES

FOR PETITIONER: Maxine F. Ferguson, Esquire

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

FOR RESPONDENT: James J. Richardson, Esquire

Post Office Box 12669 Tallahassee, Florida 32317-2669

By notice dated October 3, 1984, the Department advised the Respondent that its sign located on the North side of I-10, approximately 1.62 miles east of SR 69S in Jackson County, bearing permit number AF191-10, was in violation of Section 479.11, Florida Statutes, and Section 14-10.05(1), Florida Administrative Code. The Department seeks to revoke this permit and remove the Respondent's sign on the grounds that there is an absence of commercial activity within the required distance of this sign to qualify the site as an unzoned commercial or industrial area pursuant to Sections 479.11 and 479.111, Florida Statutes, and Section 14-10.05, Florida Administrative Code. As a result, the Department contends, permit number AF191-10 was improperly approved because the site was not located in an unzoned commercial area as represented on the application. The issue is whether the Respondent's permit should be revoked because the sign location does not meet the requirements for designation as an unzoned commercial or industrial area.

FINDINGS OF FACT

1. On September 1, 1981, the Department received in its district office in Chipley, Florida, the Respondent's application for a permit to erect an outdoor advertising sign adjacent to I-10, approximately 1.62 miles east of SR 69S in Jackson County, Florida. This permit application stated that the location requested was in a commercial or industrial area within 800 feet of a business.

   
   

2. The Department's outdoor advertising inspector visited the site after having reviewed the Respondent's application and being told by Harry Fuqua that he would find a business called Branch's Garage there. He found a house with a tin farm-type building like a barn in the back. Inside this tin barn were some tools and welding equipment. There was a sign on the door stating the business hours, and another sign on the side of this tin building stating the name Branch's Garage. None of this was visible from I-10, however; all that could be seen from the interstate was the roof of the residence and part of the tin barn; there was no indication to traffic on the interstate that any commercial activity was being conducted at this location.

   
   

3. The inspector's supervisor and the Department's Right-of-Way Administrator both visited the site prior to approval of the subject permit. The supervisor had also been told that he would find a business known as Branch's Garage there, and he was looking for it. At the site he observed what appeared to be a garage and some work being done. This could not be seen from I-10, and from the interstate he could not see anything that would indicate to traffic that a garage was at this location.

   
   

4. The Respondent's representative, Harry Fuqua, admits that no business activity was visible from I-10, and that there was nothing to indicate to traffic on the interstate that any commercial activity was being conducted at this location.

   
   

5. The site where Branch's Garage is located cannot be reached from I-10 directly. It would have to be approached from one of the side roads after traffic had exited the interstate.

   
   

6. Based upon his inspection of the site, coupled with the Respondent's representation that a business called Branch's Garage existed there, the inspector approved the Respondent's application for a sign permit. Thereafter, both the supervisor and the Right-of-Way Administrator also approved the application. The permit was issued on or about September 8, 1981, because of the proximity of the proposed site to the nearby business known as Branch's Garage which had been observed by the inspector, his supervisor, and the Right- of-Way Administrator.

   
   

7. Subsequently, after the permit had been issued, the Respondent erected its sign which is the subject of this proceeding.

   
   

8. In late 1984 and early 1985 there was no business activity at the subject site and there continues to be nothing there to indicate to traffic on the interstate that any commercial activity exists at this location.

   
   

9. The Respondent through its agent Harry Fuqua, submitted the application for the subject permit, and designated thereon that the proposed location was in an unzoned commercial area within 800 feet of a business. This application also certified that the sign to be erected met all of the requirements of Chapter 479, Florida Statutes.

   CONCLUSIONS OF LAW

   
   

10. 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 authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

    
    

11. Section 479.11, Florida Statutes, provides in part:

    
    

    No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

    1. within 660 feet of the nearest edge of the right-of-way of all portions of the in- terstate system or the federal-aid primary system except as provided in s. 479.111.

       . . .

       
       

12. Section 479.111, Florida Statutes, 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.

    
    

13. Section 479.01, Florida Statutes, sets 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 regu- lation 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:

    (d) Activities not visible from the main traveled way.

    (15) "Maintain" means to allow to exist.

    
    

14. Section 14-10.02, Florida Administrative Code, provides in part:

    
    

    . . . The department shall effectively control or cause to be controlled, the erection and maintenance of outdoor advertising, advertising signs and advertising structures along all the Inter state and Federal-Aid Primary Highway Systems. . . .

15. Section 479.08, Florida Statutes 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 permitted has violated any of the provisions of this chapter. . . .

    
    

16. 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 of these signs. Regardless, of whether the subject application was approved by the inspector and other Department officials, and the permit subsequently issued by the Department, the statutory prerequisite for the erection of a lawful sign was not present when the application was submitted. The approval of the inspector and his supervisor was based on what they expected to find at the site from information contained in the Respondent's application and from what they had been told. But the proposed site was not in a commercial or industrial area within 800 feet of a business that was visible from the interstate when the Respondent certified on its application that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes. Activities not visible from the main-traveled way are excluded by the statutory definitions from qualifying a location as an unzoned commercial or industrial area. Thus, the Respondent's permit may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

17. The Respondent contends that the Department is estopped from revoking its permit, 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, thus foreclosing the applicability of the doctrine of estoppel.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AF191-10 held by Fuqua & Davis, Inc., be

revoked, and the sign which was erected pursuant to this permit be removed.

THIS RECOMMENDED ORDER entered this 11th day of July, 1985 in 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 11th day of July, 1985.

COPIES FURNISHED:

Maxine C. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

James J. Richardson, Esquire

P. O. Box 12669

Tallahassee, Florida 32317-2669

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003737

Orders for Case No: 84-003737