STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3870T

) 84-3871T

T & L MANAGEMENT, INC., and ) WILLIAM TERRY, d/b/a )

T & L MANAGEMENT, 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 these consolidated cases on June 19, 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.

APPEARANCES

FOR PETITIONER: Maxine F. Ferguson, Esquire

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

FOR RESPONDENT: Michael D. Smith, Esquire

201 East Government Street Pensacola, Florida 32501

By notices dated October 3, 1984, the Department advised the Respondent that its signs located in Escambia County on the north side of I-10, approximately .4 mile west of SR 297, bearing permit numbers AK081-12 and AK082- 12, were in violation of Section 479.11, Florida Statutes, and Rule 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 479.11 and 479.111, Florida Statutes, and Rule 14-10.05, Florida Administrative Code.

Thus, the issue is whether the Respondent's permits should be revoked because the sign location is not within an unzoned commercial or industrial area.

FINDINGS OF FACT

1. The Respondent, T & L Management, Inc., was issued permits numbered AK081-12 and AK082-12 on or about August 30, 1983. These permits were for the erection of signs on the north side of I-10, approximately .4 mile west of SR 297, in Escambia County, Florida. They were issued because of the proximity of a welding business adjacent to the proposed sign location.

2. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes.

   
   

3. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of what she believed to be a welding shop nearby the proposed sign location. This inspector was looking for a welding shop because she had been informed that a welding shop was located there. What she saw was some welding being done on the property where the welding business was supposed to be. This could be seen from the interstate. Apparently because the inspector expected to find a welding business near the proposed sign site, she concluded that such a business existed there, and the applications were approved.

   
   

4. However, the occupant of the subject property has lived there for 37 years, and he has never operated a welding business. He has only done welding on this site once since 1980, when he welded a bumper onto a truck in his barn. The photographs which were received in evidence show his property, and the general appearance of this area is residential or rural in nature, and not commercial. It is visible to traffic on I-10.

   
   

5. The Department's inspector testified that she used a pair of binoculars to enable her to see a small sign reading "welding" on the property where she saw welding being done. However, the property owner denied that any such sign was on his property. Other witnesses presented by the Respondent also testified that they saw welding being done, but this issue has been resolved by accepting the testimony of the witness who lived on the property and who did the welding on the one occasion, as being the more credible and trustworthy evidence.

   
   

6. The adjacent property is leased by Pensacola Outdoor Advertising. This property has a building on it which bears a small sign reading "Pensacola Outdoor Adv." and the telephone number. This building was leased by Pensacola Outdoor Advertising in 1984, and was not used for any business purpose when the permit applications were submitted. This property is also visible from I-10.

   
   

7. When the Respondent applied for the subject permits there was no business activity being conducted within 800 feet of the proposed sign location. Therefore, the Department's inspector made a mistake in approving the Respondent's applications for this site.

   
   

8. In October of 1984 the Department issued its violation notices advising the Respondent that the subject sign permits were being revoked.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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 therefor, pursuant to Chapter 479, Florida Statutes.

10. Section 479.11, Florida Statutes (1983), provides in part:

    
    

    No advertisement, advertising sign or adver- tising 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 inter- state system or the federal-aid primary system except as provided in s. 479.111. . . .

       
       

11. Section 479.111, Florida Statutes (1983), 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.

    
    

12. Section 479.02, Florida Statutes (1983), provides in part:

    
    

    1. It shall be the function and duty of the department, subject to current federal regulations, to:

    2. 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; . . .

       
       

13. Section 479.01, Florida Statutes (1983), 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 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. . . .

    
    

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

    
    

    . . . (T)he department shall effectively con- trol or cause to be controlled, the erection and maintenance of outdoor advertising, adver- tising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .

15. 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 deter- mines that the application for the permit con- tains knowingly false or misleading informa- tion or that the permittee 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. The statutes further authorize the Department to determine what are unzoned commercial and industrial areas.

    
    

17. The Department's inspector who approved the Respondent's applications apparently acted in reliance on what she expected to find at the subject site. This expectation led to the erroneous conclusion that the commercial activities of a welding shop were being conducted there. However, the occupant of the site where welding was supposed to be going on denies that any such activity was performed on this property except once, and he has never conducted any business there. The photos in evidence corroborate this testimony and show no evidence of 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, which give to the Department the duty to effectively control the continued existence of signs along controlled highways, and to determine what are unzoned commercial areas.

    
    

18. 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 there was no business being conducted there in 1983, and that the Respondent's applications for permits did not comply with all of the requirements of Chapter 479, Florida 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).

    
    

19. Regardless of whether the Respondent's applications were approved by the inspector and the permits subsequently issued by the Department, there were no business activities being conducted near the site when these applications were submitted. Therefore, the statutory prerequisite for the issuance of lawful permits was not present. The proposed site was not in a commercial or industrial area within 800 feet of business activities 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 there was no business activity in the area that would qualify the site as unzoned commercial, and the Respondent's permits may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

20. 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 as contained in the applications.

Consequently, the doctrine of estoppel is not applicable.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AK081-12 and AK082-12 held by the

Respondent, T & L Management, Inc., authorizing signs on the north side of I-10, approximately .4 mile west of SR 297 in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed.

THIS RECOMMENDED ORDER entered this 7th day of November, 1985, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 84-3870T & 84-3871T

The Proposed Findings of Fact submitted by the parties are ruled upon as follows:

Respondent's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Rejected, as irrelevant.

4. Reject, as irrelevant.

5. Accepted, except for verification of the information in the applications as being correct, which is rejected because contrary to the weight of the evidence, and except for observation of the "welding" sign, for the same reason.

6. Accepted.

7. Accepted.

8. Accepted, except for the propriety of the issuance of permits, which is rejected as contrary to the weight of the evidence.

9. Accepted.

10. Accepted.

11. Rejected, as irrelevant because not in existence when applications were submitted.

12. Rejected, as irrelevant.

13. Accepted.

COPIES FURNISHED:

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

Michael D. Smith, Esquire

201 East Government Street Pensacola, Florida 32501

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003870

Orders for Case No: 84-003870