Judges: WILLIAM B. THOMAS
Agency: Department of Transportation
Latest Update: Aug. 01, 1985
Summary: Nursery was erroneously classified as commercial activity. Statute/case law define as agricultural. Florida Statutes require commercial activity. Permit revoked.
84-3980STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3980T
)
TRI-STATE SYSTEMS, 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 13, 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: Gerald S. Livingston, Esquire
Post Office Box 2151 Orlando, Florida 32802-2151
By notice dated October 3, 1984, the Department advised the Respondent that its sign located on the north side of I-10, approximately 1.9 miles west of SR
267 in Gadsden County, bearing permit number AE316-10, 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 479.02 and 479.111, Florida Statutes, and section 14-10.05, Florida Administrative Code. Thus, 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
On or about May 8, 1981, the Department issued permit number AE316-10 to Henderson Signs. This permit authorized the erection of a sign to be located approximately 1.9 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area, and the permit was granted because of its proximity to a nearby commercial activity known as Imperial Nurseries.
Subsequently, the Respondent, Tri-State Systems, Inc., purchased the subject permit from Henderson Signs, and thereafter the sign in question was erected by the Respondent.
The area where this sign was placed is rural in nature and generally suitable for agricultural activities. However, the business being conducted by Imperial Nurseries in 1981 was the growing of ornamental evergreens primarily for wholesale distribution in Northern markets. These ornamental evergreens were grown in containers on top of the ground, and shipped by refrigerated trucks. A view of the area in 1981 would show evergreen plants in containers sitting on top of dry sod. Imperial Nurseries produces three to four million evergreens, does two to three million dollars in business, and employs approximately 130 employees. Although the only structure now situated within 660 feet of the interstate is a weather shed, in 1981 there was a loading dock located within 660 feet of the interstate from which the loading and shipping took place, there was a portable toilet, low bed trucks, semi-trailers, and tractors working near this loading dock, and men working in the area.
Prior to the Department's issuance of the subject permit, one of the 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 the subject sign.
Based on this inspection he recommended the issuance of the permit 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.
The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had also conducted a field inspection of the area. Both of them based their approvals on their observations in 1981 of commercial activities being conducted within 660 feet from I- 10.
The site where the Respondent erected its sign was within 800 feet of the place where the loading dock was situated in 1981. The assertion of Henderson Signs on its sign permit application that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspector and his supervisor concurred in 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 the permit application submitted by Henderson Signs, 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 permit was granted on the basis of this determination, not on the representation of Henderson Signs or the Respondent.
In the summer of 1984, the subject site was inspected by the Department's Right-of-Way Administrator, who determined that the business being conducted by Imperial Nurseries in 1984 was agricultural, and not commercial in
nature. Although Imperial Nurseries now has an agricultural exemption on its property, there is no evidence that it had this in 1981, and the facts support a finding that Imperial Nurseries is a commercial activity and was such in 1981.
There is no statutory definition of "agricultural" 1/ and the Department has not defined the term by rule. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, defines "agricultural" as the cultivation of the ground, the art of preparing the soil, the tillage or the culture of the earth. These are not the activities of Imperial Nurseries now, and were not in 1981.
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 therefor, 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, 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. Section I, 1., B., thereof provides in part:
(B) 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.
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 advertising, 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 primarily on the activities observed by its inspectors being conducted at Imperial Nurseries. Thereafter, the Department's Right-of-
Way Administrator made a subsequent determination that this area is agricultural and not commercial in nature. It is upon this later determination that the Department seeks to revoke the Respondent's permit. Yet the facts and circumstances are essentially the same as existed when the permit application was approved.
The Department now contends that it erred in 1981 when it approved the application and issued the permit, 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 subject site for outdoor advertising signs in 1981. If it later changes its construction of the statutes and rules, 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 a permit by placing a different interpretation now on the statutes and rules than it placed on them in 1981, and shifting the blame for this error on the Respondent when the Department participated in the commission of the error. The Department should not be permitted to vacillate in its determination of what is and what is not an unzoned commercial area.
In 1981 the Department's inspector and his supervisor inspected the subject site to determine the veracity of the information which appeared on the permit application, and this information was found to be accurate. The business of Imperial Nurseries was determined by the Department to be commercial in nature. Upon this determination the permit was issued under the aegis of the Department for the erection of a lawful sign.
More than four years later, after the permitted sign had been erected, the Department claims that the Respondent erected the sign illegally, because it should have known that the site was not permittable. Such vacillation as this with its concomitant adverse consequences should not be countenanced.
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's predecessor did not submit an application which contained 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 permit may not be revoked. If the Department desires to broaden its statutory authority to revoke lawfully issued permits, so as to include the authority to revoke whenever policy changes require a change in the determination of what is an unzoned commercial area, then it should seek an appropriate change in the wording of section 479.08, Florida Statutes.
The Respondent contends that the Department is estopped to revoke its permit. Although the doctrine of estoppel is applicable to the State of Florida, 2/ and the Department has entered numerous final orders invoking the doctrine against itself in appropriate factual circumstances, 3/ the facts in this case do not warrant such treatment. The Respondent's representatives testified that they sought and obtained from the Department's district office in Chipley a representation that the subject site was permittable and that the permit issued to Henderson Signs was a legal permit, before they agreed to buy it. However, the Department's Chipley supervisor does not recall making this representation. Thus, the evidence is inconclusive on this point, and there is
not sufficient evidence to support a finding that any such representation was made by the Department. The elements of estoppel are (1) a representation of a material fact that is contrary to a later-asserted position, (2) reliance on this representation, and (3) a change of position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Kuge,
M.D. cited in footnote 2. Since the evidence does not support a finding that a Department representation was made, this doctrine is inapplicable to the facts of this case.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking removal of the
Respondent's sign on the north side of I-10, approximately 1.9 miles west of
S.R. 267 in Gadsden County, Florida, be dismissed; and that permit number AE 316-10 remain in effect as a permit for a nonconforming sign.
THIS RECOMMENDED ORDER entered this 1st day of August, 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 1st day of August, 1985.
ENDNOTES
1/ Section 1.01(13), Florida Statutes, provides that whenever the term agriculture is used in the state statutes, it shall include horticulture and floriculture, but this is not a statutory definition of the term agriculture.
2/ Kuge, M. D. v. Department of Administration, Division of Retirement, 449 So. 2d 389 (Fla. 3d DCA 1984).
3/ See, for example, Department Final Orders entered in D.O.T. v. National Advertising Co. (DOAH Case No. 82-560T); Foster and Kleister, Inc., v. D.O.T. (DOAH Case No. 79-387T); and Lamar Advertising Co. v. D.O.T. (DOAH Case No. 78- 2179T).
COPIES FURNISHED:
Maxine F. Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
Gerald S. Livingston, Esquire Post Office Box 2151
Orlando, Florida 32802-2151
Honorable Paul A. Pappas Secretary
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 84-3980T
TRI STATE SYSTEMS, INC.,
Respondents.
/
FINAL ORDER
A complete review of the entire record in this matter has been made. The Recommended Order of the Hearing Officer is attached and such findings as are not rejected herein are adopted. Some of Petitioner's exceptions are accepted where restated herein. The following abbreviations are used herein:
"T" for transcript, "p" for page.
The following Findings of Fact and Conclusions of Law of the Hearing Officer are determined to not be based on competent substantial evidence:
Finding of Fact No. 7: the first sentence of this finding is rejected because it is a conclusion of law and should be separately stated. The finding, in its entirety, is also rejected because there is competent substantial evidence which shows that Imperial Nurseries is an agricultural business (T.p.
12) and as such is precluded by Section 49.01(20)(b) from being recognized as an unzoned commercial or industrial zone. Moreover, the policy of the Department does not leave the determination of what is and what is not an unzoned commercial area to a field inspector especially when that determination is
contrary to law. The Department does not have the authority to alter the law when a field inspector makes an illegal determination. The illegality of the original determination is evident because the site in question was approved as a commercial activity even though the "activity" which gave rise to the site approval was the growing of Ornamental Evergreen trees. (T.p. 36)
Finding of Fact No. 8: This finding Is rejected because Section 1.01 Fla.
Stat. (1981) states that:
(13)whenever the terms "agriculture" agricultural purposes", "agricultural uses", or words of similar import are used in any of the statutes of the state, such terms include horticulture and floriculture.
Webster's Third New International Dictionary, Unabridged (1981), defines "horticulture" as:
The cultivation of an orchard, garden, or nursery on a small or large scale; the science and art of growing fruits, vegetable, flower, or ornamental shrubs.
It has also been noted by the Florida Supreme Court in Florida Industrial Commission v. Growers Equipment Company, 12 So.2d 889 (Fla. 1943) that the term agriculture
"is a wide and comprehensive term and
that statutes using it without qualification, must be given an equally comprehensive meaning in the broad sense agriculture includes farming, horticulture, forestry,
Because the horticultural "activities" of Imperial Nurseries are statutorily defined and recognized by case law as being agricultural in nature, they cannot be cognizable commercial activities as required by Chapter 479 Florida Statutes.
Conclusion of Law No. 9: is rejected because It does not comport with applicable law. Any interpretation, policy or action beyond the scope of, or out of harmony with the underlying legislation is a mere nullity. See e.g. U.S.
v. Larionoff, 431 U.S. 864 (1977); Manhatton General Equipment Company, v. Commissioners, 297 U.S. 129 (1936); Board of Optometry, Department of Professional Regulation v. Florida Medical Association, 463 So.2d 1213 (Fla. 1st DCA 1985); Roth v. State, 378 So.2d 794 (Fla. 2d DCA 1980); Florida Growers Coop Transport v. Department of Revenue, 273 So.2d 142 (Fla. 1st DCA 1973). Further, anyone who deals with the government is expected to know the law and may not rely on the conduct of government agents which are contrary to law. See generally Heckler v. Community Health Services of Crawford County, Inc.,
U.S. , 104 SCT. 2218, 81 LEd.2d 42 (1984)
An agricultural activity has never been cognizable as "commercial activity" under Chapter 479, and, in the instant case, the permits were initially issued based upon "activity" even though that activity was agricultural. (T.p. 36) Such issuance has therefore always been illegal. This illegality is not based on an interpretation of Chapter 479 but rather, is based on the application of
Chapter 479. Departmental employees did indeed participate in the commission of the initial error but this does not relieve the Department from the duty of enforcing the law as it' has always been.
Conclusion of Law No. 10 is rejected to the extent that it implies that an incorrect application of law by Departmental employees precludes the Department from correctly applying the law.
Conclusion of Law No. 11 is rejected to the extent that it implies that it is improper for the Department to correct a mistake of law made in part by the agents of the Department.
Conclusion of Law No. 12 is rejected because the sign in question has always been in violation of Chapter 479 F.S. and the Department therefore has the authority pursuant to Chapter 479.08 to revoke permits which violate Chapter 479.
Conclusion of Law No. 13 is rejected to the extent that it implies that Kuge v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984) would be applicable if there was competent, substantial evidence to show that Departmental personnel said that the permit issued to Henderson Signs was a legal permit. Kuge involved a representation of fact. In the instant case there was a permit and the Department can be held to that fact; however, any representation by Departmental personnel as to the legality of the sign site itself is a representation of law. Kuge therefore is inapplicable even if a representation of law was made by Departmental personnel.
For the foregoing reasons it is found that permit number AE316-10 assigned to a sign currently owned by Tri State Systems, Inc. was issued in violation of Chapter 479.F.S.
Accordingly, it is ORDERED that permit number AE316-10 assigned to a sign which is located approximately 1.9 miles west of S.R. 267 in Gadsden County, Florida; said sign belonging to Tri State Systems, Inc., is hereby revoked.
Further it is ORDERED that Respondent remove said sign within 30 days of this final order.
DONE AND ORDERED this 30th day of October, 1985.
THOMAS E. DRAWDY
Secretary
Department of Transportation
Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Copies Furnished:
Gerald Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
William B. Thomas Hearing Officer DOAH
2009 Apalachee Parkway
Tallahassee, Florida 32301
Maxine F. Ferguson Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, Florida 32301
Docket for Case No: 84-003980
Orders for Case No: 84-003980
| Issue Date |
Document |
Summary |
|
Oct. 30, 1985 |
Agency Final Order
|
|
|
Aug. 01, 1985 |
Recommended Order
|
Nursery was erroneously classified as commercial activity. Statute/case law define as agricultural. Florida Statutes require commercial activity. Permit revoked.
|
