STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1026T

) 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

1. Thomas, held a formal hearing in this case on June 20, 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 Bldg., Mail Station 58 Tallahassee, Florida 32301-8064

   
   

   For Respondent: Michael D. Smith, Esquire

   201 East Government Street Pensacola, Florida 32501

   
   

   By letter dated February 8, 1985, the Department notified the Respondent that its signs located in Escambia County on the south side of I-10, approximately one mile east of SR 291 (Davis Highway) bearing permit numbers AG800-10 and AG798-10, were in violation of Section 479.111, Florida Statutes, and Rule 14-10.05(1), Florida Administrative Code. The Department seeks to revoke these

   permits pursuant to Section 479.08, Florida Statutes, 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 AG800-10 and AG798-10 on or about April 9, 1982. These permits were for the erection of signs on the south side of I-10, approximately one mile east of SR 291 (Davis Highway), in Escambia County, Florida. They were issued because of the existence of a business known as Gail's Beauty Shop within 660 feet of the interstate and within 800 feet of tide 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 and by her supervisor, who approved the applications because of the existence of a beauty shop nearby the proposed sign location. The Department's inspector had visited this site previously when the Respondent had applied for a permit at this location, and had disapproved the application because no commercial activity could be seen from the interstate. Subsequently, foliage was cut, and the site was reinspected pursuant to the Respondent's subject applications. With the shrubbery trimmed and the vegetation cleared out, the rear side of the building housing Gail's Beauty Shop was visible from I-

1. The inspector and her supervisor concurred in the approval of the permits.

   1. Gail Wilcox and her family have lived on the property nearby the site of the Respondent's signs for 19 years. This property is within 660 feet of I-10, facing away from the interstate. It is within 800 feet of the Respondent's signs. In April of 1982 when the subject applications were submitted, Gail Wilcox operated a beauty shop in the building where she and her husband and daughter made their residence. This house had been constructed with an attached double garage on one side of it. It had been remodeled so that the side with this double garage was converted to a one-car garage with the remainder of the garage made into a business area. This business area on the far end of the house is where Gail's Beauty Shop was located. It had its own separate entrance in the front, with no entrance into the remaining garage or into the house itself. The entire building was under one roof, as it had been before the double garage was converted. This building is otherwise used as the Wilcox residence.

      
      

   2. There is no question that Gail Wilcox operated a beauty shop at this location. She had an occupational license, a business telephone, and there was a sign on the window in front "Gail's Beauty Shop." Nevertheless the photographs in evidence show this area to be residential in nature. It was visible to traffic on the interstate when the applications were submitted and when they were approved.

      
      

   3. Sometime prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because the business activity used to qualify the site as unzoned commercial was being conducted in a building used principally as a residence. As a result, the Department issued its notice of violation advising the Respondent that the subject sign permits were being revoked.

      
      

      CONCLUSIONS OF LAW

      
      

   4. 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.

   5. 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 . . . .

         
         

   6. 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.

      
      

   7. Section 479.02, Florida Statutes, (1981), 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; . . .

         
         

   8. 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:

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

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

      
      

   9. 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 Inter-state and Federal-Aid Primary Highway Systems. . . .

      
      

   10. 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

       of this chapter. . . .

       
       

   11. 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. The subject site was in an unzoned area where a business activity known as Gail's Beauty Shop was being operated, but this business was conducted in a building used principally as a residence. This is excluded by the statutory definition from constituting a cognizable business activity to support a

       sign location. The photos in evidence show the area to be residential in nature, without any indication of business activities or even a commercial appearance at the site.

       Thus, the Department's inspectors made an error 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.

       
       

   12. 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 business being conducted there in 1982 was excluded by the statutes from qualifying the site as an unzoned commercial location, 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).

       
       

   13. Regardless of whether the Respondent's applications were approved by the inspector and the permits subsequently issued by the Department, the area did not qualify as unzoned commercial when these applications were submitted. Therefore, the statutory prerequisite for the issuance of lawful permits was not present. The proposed site was not in an area which could qualify as unzoned commercial 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 the area was not unzoned commercial, and the Respondent's permits may be revoked pursuant to Section 479.08, Florida Statutes.

       
       

   14. 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.

       
       

   15. Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that permits numbered AG800-10 and AG798-

10 held by the Respondent, T & L Management, Inc., authorizing signs on the south side of I-10, approximately one mile west of SR 291 (Davis Highway) in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed.

THIS RECOMMENDED ORDER entered this 8th day of November, 1985 in Tallahassee, Leon County, Florida.

Hearings

Division

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the

of Administrative Hearings this 8th day of November, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1026T

Respondent's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Rejected, as irrelevant.

5. Accepted.

6. Rejected, as irrelevant.

7. Accepted.

8. Rejected, as use of the word "properly" is contrary to the applicable' statutes.

9. Accepted.

10. Accepted.

11. Rejected, as irrelevant.

12. 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: 85-001026

Orders for Case No: 85-001026