STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4460T

) T & L MANAGEMENT, INC., and ) WILLIAM M. 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 this case on June 19, 1985, in Pensacola, Florida. Subsequently, the parties 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 notice dated November 16, 1984, the Department advised the Respondent that its sign located in Escambia County on the west side of I-110, approximately one mile north of Brent Lane, bearing permit numbers AG994-10 and AG995-10, was 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 sign on the grounds that there is an absence of visible 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 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 AG994-10 and AG995-10 on or about April 19, 1982. These permits were for the erection of a sign located on the west side of I-110, approximately one mile north of Brent Lane in Escambia County, Florida. They were issued because of

   the proximity of an antique business noted on a sketch attached to the application submitted by the Respondent as "Hazel's Antiques and Used Furniture".

   
   

2. The Respondent submitted the applications and the attached sketch for these permits, and designated on the applications that the sign location would be in an unzoned area within 800 feet of a commercial business. The sketch shows what is designated as "Hazel's Antiques and Used Furniture" to be in close proximity with the proposed sign location. On each of these applications William L. Terry certified that the sign would meet all requirements of Chapter

   479 of the Florida Statutes. Although the Respondent did not inspect the site prior to submitting the applications, the location was represented to the Respondent to be a permissible sign site by a locator, Jerry Birch, who was acting in the capacity of agent for the Respondent.

   
   

3. Prior to the issuance of these permits, the subject site was inspected by Department personnel on at least two occasions. As viewed from I-110, a shed and a sign reading "Antiques" was visible at this location. While inspecting what the applications described to be an antique business nearby, they observed various items around and under the shed, described as "bottles and jars", "very well used furniture", "merchandise or junk" and "a chair or maybe more than one". However, neither Hazel Croley who resides at this location in the trailer represented by T & L Management as "Hazel's Antiques and Used Furniture", nor anyone else, has ever sold antiques on this property. The shed which is visible from I-110 was used for cookouts. Although her mother's house, which is also located on this property, contained antiques, these were not for sale. Any furniture or items stored outside of the residences of this property were discarded junk, "unusable stuff" and not for sale.

   
   

4. The sign reading "Antiques" was placed at this location at about the time the subject applications were submitted to the Department by the agent of T & L Management, Jerry Birch. Mr. Birch also supplied Hazel Croley with an occupational license in her name for an antique business at this location. This license was for the year 1982 only, and was paid for by T & L Management. These events compel a finding that the antique business at this location was a sham perpetrated by the Respondent to circumvent the requirements of Chapter 479, Florida Statutes.

   
   

5. During the summer of 1984, the subject site was inspected by a Department Right-of-Way Administrator, who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the sign. In November of 1984, the Department issued its notices of violation advising the Respondent that the subject sign permits were being revoked.

   
   

   CONCLUSIONS OF LAW

   
   

6. 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.

   
   

7. Section 479.11, Florida Statutes, (1981), 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 Interstate system or the federal-aid primary system except as provided in s. 479.111.

      . . .

      
      

8. 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.

   
   

9. Section 479.01, Florida Statutes, (1981), 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 activi- ties 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.

   
   

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

    
    

    . . . (T)he department shall effectively control or cause to be controlled, the erec- tion and maintenance of outdoor advertising, advertising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .

    
    

11. Section 479.02, Florida Statutes, (1981), provides in part:

    
    

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

       1. 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; . . .

12. Section 479.08, (1984), 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 deter- mines that the application for the permit contains knowingly false or misleading infor- mation or that the permittee has violated any of the provisions of this chapter. . . .

    
    

13. 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.

    
    

14. The Department's inspectors who approved the Respondent's applications apparently did not fully consider subsection (d) of Section 479.01(10), Florida Statutes, which excludes activities not visible from the main-traveled way from qualifying a site as unzoned commercial. These inspectors acted in reliance on what the diagram accompanying the applications indicated, and they apparently expected to find an antique business at the site. This expectation led them to conclude erroneously from what they saw that an antique business existed at the site, but the testimony of Hazel Croley that there never was any business at this location confirms the error of the inspectors. Their failure to fully consider the visibility from the interstate of what they considered to be a business, further led them to approve the site as a permissible location. Such errors as these, however, 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.

    
    

15. 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 activities in and around what was called "Hazel's Antiques" are not visible from the main-traveled way of I-110, and that this area may not be recognized as unzoned commercial. 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)

    
    

16. Regardless of whether what was called "Hazel's Antiques" exists within 660 feet of the interstate and within 800 feet of the site of the Respondent's permits, or whether the subject applications were approved by the inspectors and the permits subsequently issued by the Department, no business has ever been conducted within 800 feet of the sign site. Therefore, the statutory prerequisite for the issuance of lawful permits was not present when the applications were submitted. The proposed site was not in a commercial or industrial area within 800 feet of a business when the Respondent certified on its applications that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes.

    
    

17. Even if "Hazel's Antiques" had been in operation at the subject location; the Respondent's sign would still not be erected at a permissible site. Nothing was visible from the main-traveled way of I-110 except the shed.

    There is no evidence that this shed, by itself and without the sign reading "Antiques" that was placed by the Respondent, would have been a visible indication to traffic on the interstate that a business activity existed at this location. Activities that are 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 Department was correct in making its redetermination that there was no visible 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.

    
    

18. 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.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AG994-10 and AG995-10 held by the

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

THIS RECOMMENDED ORDER entered this 18th October, 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 18th day of October, 1985.

APPENDIX

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

Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

Respondent's Proposed Findings of Fact:

1. Accepted.

2. Rejected because irrelevant.

3. Rejected because irrelevant.

4. Rejected because irrelevant.

5. Accepted.

6. Rejected.

7. Rejected.

8. Rejected because irrelevant.

9. Accepted.

10. Rejected.

11. Rejected because irrelevant.

12. Rejected because irrelevant.

13. Rejected.

COPIES FURNISHED:

Maxine F. Ferguson, Esquire Haydon Burns Building

Mail Station 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: 84-004460

Orders for Case No: 84-004460