miles west of SR 267 in Gadsden County, bearing permit numbers AF091-10, AF241-10, ADO92-10, and AF242-10, were in violation of Section 479.11, Florida Statutes, and Section 14-10.05(1), Florida Administrative Code. The Department seeks to revoke these permits and remove the Respondent's signs on the grounds that there is an absence of commercial activity within the required distance of these signs to qualify the site as an unzoned commercial or industrial area pursuant to Sections 479.02 and 479.111, Florida Statutes, and Section 14-10.05, Florida Administrative Code. Thus, the issue is whether the Respondent's permits should be revoked because the sign location does not meet the requirements for designation as an unzoned commercial or industrial area.
The Respondent, Jack M. Wainwright was issued permit numbers AF091-10 and AF092-10 on August 20, 1981. Permit numbers AF241-10 and AF242-10 were issued on September 15, 1981. These permits authorized the erection of two stacked back-to-back signs at a location approximately 1.6 miles west of SR 267
in Gadsden County, Florida. This location is in an unzoned area and the permits were granted because of their proximity to a nearby commercial activity known as Imperial Nurseries.
The area in question is rural in nature and generally suitable for agricultural activities. Therefore, prior to the Department's issuance of the subject permits, one of its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of these signs. Based on this inspection he recommended the issuance of the permits upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I-10, and visible from the main-traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be, and from this evidence it is so found.
The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had conferred with the Department's central office relative to whether Imperial Nurseries qualified as a commercial activity.
The site where the Respondent proposed to erect his signs was within 800 feet of the various locations on the Imperial Nurseries property where its loading, unloading, or other activities of its employees took place. This is the testimony of the field inspector, his supervisor and the operator of Imperial Nurseries.
The business being conducted by Imperial Nurseries in 1981 was the growing of nursery stock for wholesale distribution in Northern markets. This nursery stock was grown in pots on top of the ground, and shipped by truck. There were 130 employees engaged in the various activities conducted over the entire nursery property. The business was very labor intensive, and trucks bringing in supplies and taking out loads numbered approximately 400 per year. There was much moving around. Each container had to be handled, cuttings taken and placed in the pots, and these cuttings might be repotted into larger containers, and each had to be placed at the growing locations. When mature, these plants were all loaded onto trucks and shipped out.
The Department's approval of this location as an unzoned commercial area was based upon the labor intensity of the activities being conducted at Imperial Nurseries. The assertion of the Respondent on his sign permit applications that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspectors and his superiors concurred with this characterization of the area.
Neither has the Respondent violated any of the provisions of Chapter 479, Florida Statutes. All of the facts were set forth on his permit applications, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permits were granted on the basis of this determination, not on the representation of the Respondent.
In 1984, after a change had occurred in the Department's interpretation of the statutes and rules relative to what is and what is not a commercial activity, and after the Department had adopted a more strict interpretation of the applicable statutes and rules, it initiated these proceedings to revoke the Respondent's permits as having been issued in error.
The activities of Imperial Nurseries have not changed substantially since 1981. However, the Department's interpretation of the applicable statutes and rules has changed. The Department has adopted a stricter, more conservative interpretation of these statutes since 1981, and it seeks to re- evaluate the Respondent's permits based on its newly-adopted interpretation, and to apply this strict construction to the Respondent's permits ex post facto.
In August of 1984, the Respondents entered into a new three-year lease for the site where his signs stand under which he is obligated to pay the lessor
$1,000 each year. At this time the Respondent also renovated the subject signs at the cost of $12,000.
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 issue permits therefore, pursuant to Chapter 479, Florida Statutes.
Section 479.11, Florida Statues (1981), provides in part: No advertisement, advertising sign or adver-
tising 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, U.S. Code.
(c) Determine unzoned commercial and industrial areas; . . .
Section 14-10.09(2), Florida Administrative Code, adopts the agreement between the United States and the State of Florida. Sections I, 1., B., C. and J., thereof provide:
Unzoned commercial or industrial area means an area within six hundred sixty (660) feet of the nearest edge of the right-of-way of the Interstate Federal-Aid Primary System, or State Highway Systems not zoned by State or local law, regulation or ordinance in which there is located one (1) 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:
Outdoor advertising structures.
Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.
Transient or temporary activities.
Activities not visible from the main- traveled way.
Activities more than six hundred sixty (660) feet from the nearest edge of the right-of-way.
Activities conducted in a building principally used as a residence.
Railroad tracks and minor sidings.
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. All measurements shall be made from the outer edges of the regularly used buildings, parking lots, storage or processing and landscaped areas of the commer-
cial or industrial activities and such measure- ments shall be along or parallel to the edge
of the pavement of the highway.
Commercial or industrial zone means an area within six hundred sixty (660) feet of the nearest edge of the right-of-way of the Inter- state, Federal-Aid Primary System, or State Highway Systems zoned commercial or industrial under authority of State law.
J. Maintain means to allow to exist.
Section 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 adver- tising, advertising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .
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 has the duty to control the erection of outdoor advertising signs along the Interstate and Federal-Aid Primary highways, and to determine unzoned commercial and industrial areas. The Department initially determined that the area in question was unzoned commercial based on the labor intensity of the activities being conducted at Imperial Nurseries. Upon its reevaluation of this location pursuant to a newly-adopted, more strict, interpretation of the statutes and rules, the Department now seeks to revoke the Respondent's permits on essentially the same facts and circumstances as existed when these permits were approved.
Under this changed, more conservative interpretation, the Department now contends that it erred in 1981 when it approved the Respondent's applications and issued the permits, but that this error is correctable now under its duty pursuant to the Governor's Agreement to exercise effective control of sign permits along interstate highways. The fault in this reasoning is that the Department had the same duty to exercise effective control over outdoor advertising when it permitted the Respondent's signs, and if it later changes its construction of the statutes and rules from liberal to conservative, this change should have prospective application only. The Department should not be at liberty to exonerate itself from what it now considers to have been the erroneous issuance of permits by placing the sole blame for this error on the Respondent when the Department participated in the commission of the error.
The case law cited by the Department has been considered. These cases however, deal with the principle of estoppel which is inapposite to the facts of this case. 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.
Additionally, the Department's cited cases are based upon a subsequent change in the factual situation from that which previously obtained, while this proceeding presents no factual changes at all. The only thing changed between 1981 when the Department approved and issued the Respondent's permits, and 1984
when it initiated revocation proceedings, is the enforcement policy of the Department and its adoption of a stricter, more conservative policy toward existing permits.
Pursuant to Section 479.08, Florida Statutes, a permit once issued cannot be revoked unless the application contains knowingly false or misleading information or unless the permittee has violated the provisions of Chapter 479. The facts detailed above support the findings made that the Respondent has not submitted applications which contain knowingly false or misleading information, and that the Respondent has not violated any of the provisions of Chapter 479, Florida Statutes. Thus, the statutory prerequisites for permit revocation are not present, and the Respondent's permits may not be revoked. Accordingly, the Department's violation notices should be dismissed.
