STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0323

)

TRI-STATE SYSTEMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, in Chipley, Florida, on May 16, 1986. The appearances were as follows:

APPEARANCES

For Petitioner: Maxine P. Ferguson, Esquire

Department of Transportation

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

For Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

BACKGROUND

The Petitioner, the State of Florida Department of Transportation (DOT), by Notice to Show Cause dated October 3, 1984, advised the Respondent's assignor, Branch's Outdoor Advertising, that a sign located on the north side of Interstate Highway 10 (I-10), some 1.92 miles east of State Road 69 in Jackson County, Florida, was allegedly in violation of Section 479.11, Florida Statutes, and Rule 14-

1. (1), Florida Administrative Code. The DOT thereby announced the intention to revoke permits numbered AI33-10 and AI34-10 held by Respondent's assignor, pursuant to the authority of Section 479.08, Florida Statutes. In essence the Department seeks to revoke these sign permits on the grounds that there is an absence of commercial activity in the unzoned, putatively commercial area involved, where the

   signs are located, because there is allegedly no commercial activity .'visible from the main traveled way" of I-10. At the outset of the hearing the parties stipulated that Tri- State Systems, Inc., as the assignee of the sign permits from Branch's Outdoor Advertising, was the owner of the permits for purposes of this proceeding, the real party in interest and owned the Outdoor Advertising Structure in question.

   
   

   The cause came on for hearing as noticed and the Petitioner offered four exhibits, three of which were admitted into evidence. Petitioner's Exhibit 4, consisting of a photograph, was objected to and not admitted into evidence on the basis of immateriality and irrelevance. The Petitioner presented the testimony of Milfred Truette and Jack Culpepper. The Respondent presented the testimony of Milfred Truette, Matt Fellows, Ronny Gay, Jack Culpepper as an adverse witness and Mr., Cecil Branch. The Petitioner recalled Mr. Branch and Mr. Culpepper as witnesses on rebuttal.

   
   

   At the conclusion of the hearing, the parties availed themselves of the right to file proposed findings of fact and conclusions of law. Subsequent to the hearing, the Respondent requested and, there being no objection, was granted a 30 day extension for filing proposed findings of fact and conclusions of law, waiving the requirement regarding rendition of the Recommended Order embodied in Rule 28-5.402, Florida Administrative Code. These proposed findings of fact to the extent relevant, material and noncumulative have been treated herein and are treated once again in an Appendix attached hereto and incorporated by reference herein.

   
   

   ISSUES

   
   

   The issue to be resolved in this proceeding concerns whether the Respondent's sign permits should be revoked on the basis that the permit location is not within an unzoned commercial or industrial area as required by the foregoing provisions of the statutes and rules.

   
   

   FINDINGS OF FACT

   
   

   1. On or about October 8, 1982, Branch's Outdoor Advertising filed applications for two sign permits to allow erection of an outdoor advertising sign in Jackson County, Florida. The sign is located on the north side of I-10 approximately 1.92 miles east of State Road 69. The sites applied for were field-inspected by the Department's outdoor

      advertising inspector, were approved and the Department issued the permits numbered AI33-10 and AI34-10 for the requested location.

      
      

   2. When the entity known as Branch's Outdoor Advertising submitted the application for the permits, it designated thereon that the proposed location was in a commercial or industrial unzoned area within 800 feet of a business and that the signs to be erected would meet the requirements of Chapter 479, Florida Statutes. The business which is located within 800 feet of the Respondent's sign is known as "Branch's Garage" Branch's Garage is located in a large tin shed which is used as a storage shed for farm equipment by Mr. Branch. Mr. Branch is a farmer as well as the operator of the welding and automotive repair business which is located in that same tin building. A portion of that building is visible from the main traveled way of Interstate 10. Branch's Garage is the only business located within 800 feet of the Respondent's-sign. Mr. Branch maintains two signs on or in the vicinity of his building advertising Branch's Garage and Welding Shop. The signs and the parked cars and vehicles associated with the business are, in part, visible from I-10.

   3. Mr. Jack Culpepper, the Petitioner's "Right-of-Way Administrator", was given the specific assignment of attempting to "reestablish effective control of outdoor advertising in the third district" in approximately the Summer of 1983. Mr. Culpepper had no direct knowledge of and had not inspected the vicinity of the sign in question prior to that time. In 1984,

      shortly before the Notice to Show Cause in question was issued, Mr. Culpepper did inspect the area and arrived at the belief that no commercial activity was occurring at the site known as Branch's Garage. Mr. Culpepper acknowledged that during his inspection, while driving down Interstate 10 in the vicinity, might not have noticed commercial activity which might have been going on at Branch's Garage. Mr.

      Culpepper acknowledged that, outdoor advertising regulatory personnel in the third district had adopted a more strict enforcement policy and interpretation. of the foregoing legal authority at issue in 1984 than had been the case in 1982 when the sign was permitted. In essence, that change in interpretation embodied a policy of not permitting, or seeking to revoke, permits for signs for unzoned commercial activity areas or locations when the commercial activity upon which the permits were predicated was not visible from the main traveled way of I-10, as opposed to the situation in 1982 whereby permits were issued if a commercial activity was present within 800 feet of a sign, without consideration

      of whether the commercial activity was visible from I-10. Mr. Branch conducted his welding and auto repair business known as Branch's Garage during the time in question in 1982 when the permits were issued at the site in question (the tin building). He also was conducting that activity during 1984 including the time when the Notice to Show Cause was issued. Mr. Branch is a farmer and uses the tin building in question for both businesses. Mr. Branch derives a part of his livelihood from the automobile repair and welding business. The on-premise signs located at Branch's Garage are visible from I-10.

      
      

   4. The applications for the outdoor advertising permit submitted by Branch's Outdoor Advertising were subjected to a field inspection as to the proposed site by the Department's outdoor advertising inspector on October 13, 1982. That inspector had been employed by the Department for some twelve years at the time. In connection with his duties involving enforcement of Chapter 479, Florida Statutes, and Rule 14.10, Florida Administrative Code, he had adopted a basic procedure for inspection of sign sites applied-for, which included actual inspection of the proposed site and, if the proposed site was in an unzoned area, ascertaining that there was an unzoned commercial activity present within 800 feet of the sign site. The inspector had made prior inspections of the site. As a result of those prior inspections he had already issued permits to another sign company authorizing the erection of a sign within the same vicinity based upon the unzoned commercial activity known as Branch's Welding and Garage. Based upon his field inspection in connection with the Branch's Outdoor Advertising applications in question, this inspector approved the applications, resulting in the issuance of the permits in question.

   5. The inspector had not been provided with rules or guidelines which would assist him in identifying and determining whether a commercial activity was present at the time of his inspection. He was required to make such determinations on a case-by-case basis, given the relevant statutory provisions, his experience, and instructions by his superiors, as to what would qualify as a commercial activity. Based upon the activities he observed being conducted at Branch's Welding and Garage, he concluded that there was sufficient legal basis for issuance of the permits.

      
      

   6. Upon issuance of the outdoor advertising sign permits to Branch's Outdoor Advertising, Mr. Branch erected a sign on his property which was improperly located and

      violated the spacing requirements between it and a sign known as the "Fuqua sign" which had previously been erected within the vicinity of his business. The incorrect location of Branch's sign created an enforcement problem for the Department's outdoor advertising personnel. In order to resolve that conflict with Mr. Branch, the owner of Branch's Outdoor Advertising, the inspector took an agent and representative from Tri-State Systems, Inc., Mr. Matt Fellows, to the site and identified the permits for Mr.

      Branch's sign as being legal permits. The inspector advised Matt Fellows that the sign was improperly located and suggested that Tri-State purchase Mr. Branch's permits and build a properly located sign at that vicinity location for which the permits had originally been issued.

      
      

   7. Based upon the information and suggestion from the Department's outdoor advertising inspector, the Respondent contacted Mr. Branch and made arrangements to purchase the sign permits in question. After consummating the purchase, it constructed a sign in question at the location authorized by the permits. The purchase of the permits and the subsequent erection of the sign was done in reliance upon the directions, information and suggestions from the Department's outdoor advertising inspector.

      
      

   8. The Notice of violation issued October 3, 1984, to Respondent's assignor, Branch~s Outdoor Advertising, was issued at the behest of Mr. Jack Culpepper, the Right-of-Way Administrator for the Department's Third District on or about September 27, 1984. Mr. Culpepper determined to issue the notice of violation based upon his formal inspection of the area immediately prior to that date, whereupon he concluded that the permits had been issued in error in 1982. Mr. Culpepper had no personal knowledge of whether any commercial activity was being conducted at the subject location in 1982, but relied on what had been reported to him by other third district personnel. The inspector who had personally inspected the property in 1982 had been satisfied that an unzoned commercial activity was occurring a proper distance from the sign site and his immediate supervisor had agreed with that interpretation which resulted in the permits being issued. Because of the change in interpretation of the foregoing statutory authority concerning sign permits in the Department's third district to a more strict interpretation, as delineated above, the Notice to Show Cause was issued against Respondent's assignor on October 3, 1984.

      CONCLUSIONS OF LAW

   9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57~1), Florida Statutes.

      
      

   10. The Department of Transportation has the duty to regulate outdoor advertising and to administer and enforce the outdoor advertising regulatory provisions of Chapter 479, Florida Statutes, and Chapter 14.10, Florida Administrative Code.

       
       

   11. In its Notice to Show Cause, the Department has charged the Respondent with violating the provisions of Section 479.11, Florida Statutes, and Chapter 14-10.05(1), Florida Administrative Code, by allegedly maintaining an outdoor advertising structure in an area which is not an unzoned commercial area. The Department then, pursuant to Section 479.08, Florida Statutes, seeks revocation of the subject permits. The provisions of Section 479.11, Florida Statutes, provide pertinently as follows:

       
       

       "479.11 Specified Signs Prohibited. - No sign shall be erected, used, operated, or maintained:

       
       

       (1) Within 660 feet of the nearest edge of the right-of-way or any portion of the interstate highway system or the federal aid primary highway system, except as provided in S.S. 479.111 and 479.16."

       
       

   12. The applicable provisions of Chapter 14-10.05(1), Florida Administrative Code provide as follows:

       
       

       14-10.05 violations of Chapter 479 or Chapter 335.13, F.S.

       
       

       1. Certain outdoor advertising prohibited; 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 Section 479.111, Florida Statutes . . ."

             
             

             Section 479.111 in turn provides as follows:

             
             

             "479.111 Specified Signs Allowed Within Controlled Portions of the Interstate and Federal Aid Primary Highway System. - Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal

             aid primary highway system as set forth in S. 479.11(1) and (2): . . .

             
             

       2. Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the requirements set forth in the agreement between the State and the United States Department of Transportation."

       
       

   13. Section 479.01(10), 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 (1) or more industrial or commercial activities generally recognized as commercial or industrial by zoning authorities in the state except that the following activities may not be so recognized:

       (a) Outdoor advertising structures.

       
       

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

       
       

   14. Section 479.08, Florida Statutes (1985), 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. In view of the evidence of record, the above Findings of Fact, and the foregoing authority, it is clear that the Respondent cannot be charged with submitting an application which contains knowingly false or misleading information since the Respondent acted purely on the information and suggestion received from the Department's outdoor advertising inspector. The applications were filed by Mr. Branch, the Respondent's assignor, and Mr. Branch's unrefuted testimony reveals that he maintained a commercial business activity within 800 feet of the subject sign site and the testimony of Mr. Truette, the outdoor advertising inspector who inspected the site in 1982 for the purpose of original issuance of the permits, corroborated the fact that Mr. Branch maintained a welding and auto repair business

       there as evidenced by the sign on the building as well as cars and vehicles parked around it, both of which conditions were visible from the main traveled way of Interstate 10.

       It is thus concluded that Mr. Branch did not submit the applications with ..knowingly false or misleading information". The Respondent in turn acted upon the information and representations of the Department's outdoor advertising inspector, Mr. Truette. The Respondent's only affirmative action after purchasing the permits from Mr.

       Branch and Branch's Outdoor Advertising was to erect the sign at the location identified by the inspector as legally appropriate, as the Department was then interpreting the Statute and Rules cited above. The sign structure thus conformed with the law as the Department was interpreting it at the time the sign was erected.

       
       

   16. It is clear, then, that in the circumstances established in this case that no knowingly false or misleading information has been supplied the Department on the face of the applications so that pursuant to Section 479.08, Florida Statutes, the Department cannot revoke the permits on this ground. Further, the Department has not made out a case for revocation on the other ground provided in this Section since it has not been established that the Respondent has violated the provisions of Chapter 479. The Respondent installed the sign in accordance with the law enunciated in the above provisions of Chapter 479 as they were interpreted by the Department and represented to the Respondent by the Department's regulatory personnel at the time the sign was erected. In this connection the Court's opinion in Food N' Fun, Inc. vs. Department of Transportation, llFLW 1654 (Fla. 1st DCA 1986) is instructive. In that case the Food N' Fun Company had applied for permits for outdoor advertising, relying upon the presence of the required unzoned commercial activity in the form of a welding business which was carried on in a tin shed which could be seen from the right-of-way of Interstate

       10 in Jackson County, as is the case herein. Associate Judge

       Ben C. Willis, speaking for the Court, stated:

       
       

       In all of these cases, the inspector 'field approved' the permits following on site inspections. They were then approved by the District Administrator and forwarded to Tallahassee for issuance. Food N' Fun thereafter was permitted to renew all these permits annually until October 1984, at which time it received 'Notices of Violation' stating that the signs were not in a 'commercial or industrial area.'

       . . .DOT stated as to all of these permits that the crux of the alleged violations was that, even though the buildings wherein the various activities were being conducted could be seen from the highway, there was no indication to highway traffic that any commercial activity was in progress, such as a business sign employees at work, cars in the parking lot, etc. With regard to the welding and dairy supply businesses, there was also evidence that those businesses were no longer in operation at the time of the hearing.

       
       

       Pursuant to Section 479.08(1), Florida Statutes, 'the Department may revoke any permit issued by it. . . in any case where it shall appear to the Department 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 . . .' Testimony by DOT representatives at the violation hearings indicates that the agency was relying on the emphasized ground to revoke Food N' Fun's permits, claiming that, based on the invisibility from the highway of commercial activity in progress, the permittee had 'violated the Chapter', specifically Section 479.01(10) (activity not visible from the main traveled way), in the placement of its signs. . . .

       
       

       An administrative agency, empowered to revoke a permit for reasons specified in the Statute, may not revoke such permit for any cause not clearly within the ambit of its statutory authority, as statutes authorizing revocation must be strictly construed. [Citations omitted]. In this case, DOT relies on that portion of Section 479.08 which authorizes revocation based on violation of Chapter 479 by the permittee, and in this case by placing signs in what DOT later determined to be a noncommercial zone.

       
       

       We do not believe that under the circumstances of this case, Food N' Fun has violated the Chapter. At the time it took its only affirmative action, i.e. erecting the subject signs, they conformed to the law as DOT was then interpreting it and as it continued to interpret it for several years preceding these hearings. It cannot be said that, when that interpretation changes so as to render a previously lawful sign nonconforming, the permittee has committed a violation of the Chapter so as to support revocation of his permits under Section 479.08.'

       
       

   17. The Court then, in refusing to uphold the Department's revocation of the permit, cited with approval Wainwright vs. Department of Transportation, llFLW 938 (Fla. 1st DCA April 22, 1986).

   18. In a similar case, Tri-State Systems, Inc. vs. Department of Transportation, llFLW 1757 (Fla. 1st DCA August 12, 1986), the Court found that the Department had erred in applying Section 479.08(1), Florida Statutes, to conclude that the permittee in that case had violated Chapter 479, firstly because no findings had been made that the appellant had made "knowingly false or misleading information" in the application nor, with reference to the other prong of the Department's argument in that case (and the case at bar), that the permittee generally violated the provisions of chapter 479, the other basis for revocation permitted under that section. The Court stated :

       
       

       "The thrust of the Department's argument is that the permits were illegal ab initio for 'lack of a . . . commercial area' as stated in the Notice of Revocation; and that even when Department agents err in issuing a permit any such 'action .

       . . out of harmony with the underlying legislation is a mere nullity. 'We find, however, that on the record before us any 'error' by the Department in issuing the permits was in interpretation of statutory terms, a matter clearly within its authority when the permits were issued. As Wainwright notes: "(I)n the absence of definition by rule or statute of the critical term 'commercial activity,' the permitting statute plainly means what DOT interprets it to mean at any given time. It is thoroughly specious to argue that when that interpretation changes, at any time and for whatever reason, the permittee has violated the chapter so as to support revocation of its permits." (e.s.)

       
       

   19. In Tri-State Systems, Inc. vs. Department of Transportation llFLW 1946 (Fla. 1st DCA September 11, 1986), the Court dealt with a substantially identical situation to the other Tri-State case, the Food N' Fun situation and to the case at bar. The Court cited with approval the above Tri-State opinion as well as Food N' Fun and stating:

       
       

       "We hold that Tri-State has not been shown to have violated Section 479.08. Section 479.02(3) requires DOT to 'determine unzoned commercial areas and unzoned industrial areas' when that is the basis for an application. DOT is, therefore, under a statutory duty to investigate and make that determination when an application is initially granted. DOT cannot thereafter revoke a permit for false application because it, not the applicant, made a mistake; otherwise, there would be no finality to the agency's action in issuing the permit. [Citation omitted]."

       
       

   20. The Court went on to state that, although the Department may revoke permits for statutory reasons, it

       cannot do so merely because the statutory interpretation has subsequently changed. "It cannot be stated that, when that interpretation changes so as to render a previously lawful sign nonconforming, the permitee has committed a violation of the Chapter so as to support revocation of his permits under Section 479.08." Food N' Fun, Inc. vs. Department of Transportation, supra.

       
       

   21. In all of these cases the Department's position, as it is in the case at bar, has been that the permits involved should be revoked because the commercial activity in the unzoned area upon which the permits depended was not visible from the main traveled way of Interstate 10. Here as in the cases cited that is based upon a change in interpretation from the time when the subject permits were issued. The Department clearly then was not issuing permits based upon an interpretation of the visibility of the commercial activity, but rather the fact of the existence of the commercial activity the required distance from the sign site as represented in the applications. This case clearly should be disposed of consistent with these above-quoted decisions even had the commercial activity at Branch's Garage and Welding Shop not been visible as commercial activity to travelers traveling upon Interstate 10. In fact, however, the testimony of Mr. Branch and Mr. Truette, the inspector, reveals that this commercial activity, in the form of vehicles parked around the garage and Mr. Branch's sign, was in part visible from I-10. This testimony was not refuted and it must therefore be concluded that the Respondent's permits involved in the instant case should not be revoked.

   22. The Respondent also urges that the Department should be equitably estopped from revoking the permits in question based on the fact that Respondent relied entirely on instructions and directions received from the outdoor advertising inspector. Although the Department contends that the doctrine of equitable estoppel is generally not applicable against a government agency except in exceptional circumstances, and that no amount of misrepresentation can prevent a party, including the government, from asserting as illegal that which the law declares to be so, even though an agent of that government made the original misrepresentation relied upon; it has not been proven here that that which the Department is asserting as illegal, (signs in the vicinity of a commercial activity allegedly not visible from the interstate), is indeed illegal for the reasons enunciated above.

   23. In Ida Salz vs. Department of Administration, Division of Retirement, 432 So 2d 1376 (Fla. 3rd DCA 1983) the court held that a state agency can be equitably estopped under exceptional circumstances. Proof of an estoppel requires (1) a representation as to a material fact that is contrary to a later asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel based on the representation and reliance thereon. See Department of Revenue vs. Anderson,

403 So. 2d 397, 400 (Fla. 1981). The court held that the state may not be estopped for conduct resulting from a mistake of law, but only resulting from a mistake of fact. In the Salz case, it held that the state had committed-a mistake of fact in the retirement eligibility determination involved therein and thus found the state estopped to deny Ms. Salz the retirement benefits at issue. In the case at bar, however, we have no mistake of fact upon which the Respondent relied since the essential representation made by Mr. Truette, the outdoor advertising inspector, was that the subject sign location was permitted and, as he and other Department personnel interpreted the Statute at that time, legally so. Clearly the permits had indeed been issued to Branch's Outdoor Advertising at that time and so it cannot be found that the inspector made a mistake of fact. Nor was a mistake of law committed, (even though that would not serve as the basis for estoppel) since his recommendations made to the Respondent at that time were in accordance with the law as then interpreted by DOT. The Respondent merely relied upon the interpretation of law and, even though the Respondent relied to its detriment in view of its later suffering prosecution in this revocation proceeding, it cannot be said that it relied upon a mistake of fact which, according to the Salz opinion, is the necessary element for equitable estoppel to be imposed against the state agency. Thus, although the Respondent clearly relied to its, detriment on the representation of the Department's personnel at the time it purchased the permits from Branch's Outdoor Advertising and erected the sign, it cannot be said that a case for equitable estoppel against DOT has been made out by Respondent. In summary, in view of the above Findings of Fact, Conclusions of Law and authority cited, it is concluded that the Respondent should be permitted to retain its permits.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the petition by the Department of Transportation against Tri-State Systems, Inc. should be dismissed and that Tri-State Systems, Inc. should be permitted to retain the permits referenced above.

DONE and ORDERED this 28th day of October, 1986 in Tallahassee, Florida.

P. MICHAEL RUFF 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 28th day of October, 1986.

APPENDIX

Petitioner's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Rejected as not comporting in its entirety with the competent substantial evidence of record.

6. Rejected for the same reason except for the last sentence which is accepted in so far as it demonstrates the reason for issuance of the Notice of Violation.

7. Accepted, although this proposed finding of fact is not material, relevant nor dispositive of the material issues involved in this case.

8. Accepted, although, as to its last sentence this proposed finding of fact is not material or relevant to a disposition of the material issues presented.

Respondent's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted, but not in and of itself dispositive of the material issues presented in that it is immaterial to disposition of those issues.

11. Accepted.

12. Accepted.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted.

Copies furnished:

Maxine P. Ferguson, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

A. J. Spalla, Esquire General Counsel

Department of Transportation Haydon Burns Building

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AGENCY FINAL ORDER

============================================================

=====

Tallahassee, Florida 32301-8064 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. Case No. 85-0323

TRI-STATE SYSTEMS, INC.,

Respondent.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the hearing Officer, copy attached. Petitioner, FLORIDA DEPARTMENT OF TRANSPORTATION

(Department) has filed Exceptions to Recommended Order which are considered and addressed in this order.

The Findings of Fact and the Conclusions of Law in the Recommended Order are adopted except as modified or supplemented herein. References to the transcript will be made by the use of the abbreviation "Tr" followed by the appropriate page number.

FINDINGS OF FACT

1. Finding of Fact No 3 is supplemented to reflect that in 1982, permits were issued by the Third District Outdoor Advertising personnel if within 800 feet of a sign location any portion of a building used as a commercial business was visible from the interstate. (Tr: 28-29, 32-33). The finding of the hearing officer" "whereby permits were issued if a commercial activity was present within 800 feet of a sign, without consideration of whether the commercial activity was visible from I-10," is rejected as not supported by competent substantial evidence. The testimony

   was that the inspector issued a permit if a portion of the building was visible from the interstate. He did require that the building in which commercial activity was conducted be visible from the interstate. (Tr: 10-19).

   
   

2. Finding of Fact No.5 is modified to reflect that the basis of the sign inspector's issuance of the subject permits were the representations of the applicant (Tr: 12, 71-72), the visibility of a portion of a shed (Tr: 35). The last sentence of paragraph 5 is stricken as not supported by competent substantial evidence. The sign inspector testified he never saw anyone working at Branch's Garage. (Tr: 42).

   
   

3. The Findings of Fact of the Hearing Officer are further supplemented to reflect that as viewed from the interstate, although a portion of a shed is visible, there is nothing about the subject location to lead a traveler on the main traveled way of I-10 to conclude that a commercial enterprise was conducted at this location. (Tr: 19, 47) The existence of care visible from the interstate is not dispositive. Accord DOT v. Fuqua & Davis, DOAH Case No. 84- 3737T.

   
   

4. Finding of Fact No. 8 is supplemented to reflect that a change in interpretation of the statutory authority concerning sign permits by the Department's third district personnel relating to "commercial activities visible from the main-traveled way" has occurred, so that presently the actual "commercial activity" must be visible from the interstate right of way. There has been no change in the Department's policy (Tr: 44).

CONCLUSIONS OF LAW

The Conclusions of Law of the Hearing Officer are modified to the extent that the Hearing Officer fails to note that the change in interpretation by the district personnel renders Respondent's signs nonconforming. Accord Food 'N Fun, Inc. v. Department of Transportation, 493 So. 2d 23 (1986); Wainwright v. Department of Transportation, 488 So. 2d 563 (1986).

The change in statutory interpretation discussed in the above Findings of Facts renders the subject signs nonconforming. Chapter 479, Florida Statutes, defines a nonconforming sign as follows:

(12) "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use,

setback, size, spacing, and lighting provisions of a state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions.

479.01(12) F.S.

Therefore, it is

ORDERED that the subject signs owned by Respondent, located on the north side of Interstate 10, approximately 1.92 miles east of State Road 69 in Jackson County, Florida, are nonconforming signs and the Department's Intent to Revoke sign permits numbered AI33-0 and A134-10 is DISMISSED.

DONE AND ORDERED this 26th day of January, 1987.

KAYE N. HENDERSON

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

The following information is required by law to be included in all Final Orders:

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florid 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, MS 58, 605 Suwannee Street, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within thirty (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 accompanies by the filing fee specified in Section 35.22(3), Florida Statutes.

COPIES FURNISHED:

P. Michael Ruff, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Gerald P. Ferguson, Esquire Post Office Box 2151 Orlando, Florida 32802-2151

Maxine P. Ferguson, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32301

Jane S. Steele, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building, MS 22 Tallahassee, Florida 32301

Docket for Case No: 85-000323

Orders for Case No: 85-000323