STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4461T

)

BILL SALTER OUTDOOR )

ADVERTISING, 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 18, 1985, in Pensacola, 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 Bldg., Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Mark J. Proctor, Esquire

Post Office Box 12308 Pensacola, Florida 32581

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 .95 mile north of SR 296, bearing permit numbers AH820-10 and AH821-10, was in violation of Section 479.111, 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. On or about August 16, 1982, the Respondent, Bill Salter Outdoor Advertising, Inc., filed applications for two permits to erect an outdoor advertising sign in Escambia County, Florida on the west side of I-110, .95 mile north of SR 296. This sign would have one face for northbound traffic and one face for southbound traffic, and would be located outside the city limits of Pensacola.

   
   

2. These applications were field inspected by the Department's outdoor advertising inspector, and they were approved by the Department's district supervisor in Chipley. On or about September 20, 1982, the Department issued permits for the requested location to the Respondent.

   
   

3. On these applications the Respondent designated that the proposed sign location was in an unzoned commercial area within 800 feet of a business. These applications also certified that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. A sketch attached to the applications showed that the proposed sign location would be adjacent to a business that was designated as Coleman Roofing.

   
   

4. When the field inspector visited the site she was aware that an antique business was supposed to be located in the area because it was designated on another outdoor advertising company's application as a business that qualified another sign location as unzoned commercial. This inspector found Hazel's Antiques because there was a sign which said "antiques" and a nearby shed which was visible from the interstate. In continuing to look for Coleman Roofing, she walked up the embankment between I-110 and the subject location until she could see what she determined to be some roofing material stored at one end of the property. She approved the Respondent's applications more on the proximity of the antique business than on the basis of Coleman Roofing.

   
   

5. The owner of the property where the antique business was supposed to be is not in the antique business and has never conducted any business activities from this property. She lives there in a mobile home, and no one else has ever been in business on her property. Another outdoor advertising company obtained her permission to place a sign on her property saying "antiques", and there are some antiques in her mother's home, but these are not for sale. A representative from this sign company also took out a county occupational license in the name of this property owner, but she did not apply for this license. The shed seen by the Department's inspector is used for cookouts, and while there is some old furniture outside, it is junk waiting to be carried away.

   
   

6. The owner of the property where Coleman Roofing was supposed to be is a self-employed roofer operating out of a trailer in which he lives. He has also worked from his home as a carpenter. He has no business telephone in his home, only a residential listing, and he only does bookkeeping from the dining room of his home. Outside there is a shed where he has kept his boat and an outbuilding with junk and old furniture in it. When he is working on roofing jobs he orders roofing material delivered to the job site. His property is in a residential area, and any leftover roofing material that may be there is awaiting a trip to the dump.

7. As viewed from I-110, there is no indication that any commercial activity is being conducted at the subject location. The nature of the area within 660 feet of the interstate right of-way and within 800 feet of the Respondent's sign is residential.

   
   

8. Sometime prior to November of 1984, the site was inspected by the Department's 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 signs. As a result, the Department issued its notice of violation 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 there for, pursuant to Chapter 479, Florida Statutes.

   
   

10. 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 . . . .

       
       

11. 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.

    
    

12. 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 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, except that the following

    activities may not be so recognized:

    (a) Outdoor advertising structures.

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

    (f) Activities conducted in a building principally used as a residence.

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

    
    

13. Rule 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 . . . .

    
    

14. 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. . . .

    
    

15. Pursuant to these statutes and rules the Department has the 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 applications for the subject permits were approved by the Department, and the permits subsequently issued, the statutory prerequisites for the erection of a lawful sign at the location which is the subject of this proceeding were not present when the applications were submitted. The subject site was in an unzoned area, but it was not within 800 feet of a business that was visible from the main-traveled way of I-110 as required. Any business activity being conducted by Coleman Roofing in this area was conducted from a trailer which was used primarily as a residence, and this is excluded by the statutory definitions from constituting a cognizable business activity. Moreover, no antique business at all was being conducted from the property where Hazel's Antiques was supposed to have been operating. Nevertheless, the Respondent certified on the applications that the sign would meet all the requirements of Chapter 479, Florida Statutes, but they did not. Thus, the Respondent's permits may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

16. 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 facts do not support a finding that the Department made such a 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 numbers AH820-10 and AH821-10, held by the

Respondent, Bill Salter Outdoor Advertising, Inc., authorizing a sign on the

west side of I-110, .95 mile north of SR 295, in Escambia County, Florida, be revoked, and the subject sign removed.

THIS RECOMMENDED ORDER entered this 12th day of September, 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 12th day of September, 1985.

COPIES FURNISHED:

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

Mark J. Proctor, Esquire

P. O. Box 12308 Pensacola, Florida 32581

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-004461

Orders for Case No: 84-004461