Judges: WILLIAM B. THOMAS
Agency: Department of Transportation
Latest Update: Oct. 23, 1986
Summary: Violation dismissed. DOT may not seek sanctions upon reconsideration of pri- or erroneous interpretation of statute. Sign classified as non-conforming.
85-3292
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-3292T
)
CASHI SIGNS, )
)
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 February 5, 1986, in Orlando, Florida. The transcript was filed on March 7, 1986, and the parties were allowed 30 days thereafter to submit proposed findings of fact and conclusions of law. Several extensions to this period of time were granted, but nothing has been received from the parties.
APPEARANCES
For Petitioner: Philip S. Bennett, Esquire
Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064
For Respondent: Gerald S. Livingston, Esquire
Post Office Box 2151 Orlando, Florida 32802-2151
By violation notice issued on August 21, 1985, the Respondent's sign adjacent to U.S. 17/92/441, .64 mile north of 1-
4 in Orange County, Florida, was charged with violations of the Outdoor Advertising Act for not having a state sign permit and for violating the spacing rule. The issue to be resolved is whether the subject -sign violates the statutes and rules as alleged, and should be removed.
FINDINGS OF FACT
The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice.
The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441.
U.S. 17/92/441 is a federal-aid primary highway. Kaley Avenue is a non-controlled road.
The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway.
In March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding.
By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required.
Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981.
The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue.
There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue.
The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the
permit which the Respondent had applied for in 1981, but which had not been issued.
It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has regulatory authority over outdoor advertising signs as prescribed by Chapter 479, Florida Statutes.
Section 479.07(1), Florida Statutes, prohibits the erection of a sign on any portion of a federal-aid primary highway without a state sign permit. Pursuant to Section 479.105(1), Florida Statutes, a sign which is erected adjacent to any portion of the right-of-way of a federal-aid primary highway without the permit required by Section 479.07(1) is illegal and should be removed.
The controlled portion of a federal-aid primary highway is that area which is within 660 feet of a federal-aid primary highway, pursuant to Section 479.11(1), Florida Statutes.
Section 479.07(9)(a)2., Florida Statutes, prohibits the erection of a sign on a federal-aid primary highway unless there is 1,000 feet of spacing between the sign to be erected and the closest permitted sign on the same side of the highway. The Governor's Agreement, Rule 14-10.09, Florida Administrative Code, under Spacing of Signs, adds the requirement that the two signs face the same direction in order to be unlawful.
Since the subject sign is within 660 feet of U.S. 17/19/441, a federal-aid primary highway, and is visible from the controlled road, it requires a permit. Acknowledging this requirement, the Respondent applied for a permit. The Department returned this application with the instruction to the Respondent that a permit was not required based upon its interpretation of the statutes and rules. Now, however, upon reconsideration of the statutes and rules, and finding that its prior interpretation was erroneous, the Department seeks to remove the Respondent's sign
for not having the permit it would not issue. The matter of the alleged violation of the spacing rule was also used to seek removal of this sign, but it is not clear from the evidence that the spacing rule has been violated because the evidence does not clearly show the subject sign to be on the same side of the highway and facing the same direction as the closest permitted sign. Thus, the Department has not carried its burden of proof on this issue.
The principle that the Department may not seek sanctions against a sign upon its reconsideration of a prior erroneous interpretation of the statutes and rules has been recently enunciated in Wainwright v. Department of Transportation, 11 FLW 938 (Fla. 1st DCA, April 25, 1986), Food-N-Fun v. Department of Transportation, 11 FLW 1654 (Fla. 1st DCA, August 8, 1986), C-Sand Company v. Department of Transportation, Case No. BJ-392 (Fla. 1st DCA, September 9, 1986), Tri-State Systems, Inc., v. Department of Transportation, Case No. BJ-426 (Fla. 1st DCA, August 12, 1986), and Tri-State Systems, Inc., v. Department of Transportation, Case No. BJ-428 (Fla. 1st DCA, September 11, 1986). The rationale of these cases is that unless the sign owner has made misrepresentations to the Department relative to the sign in question, the Department cannot change its long- standing interpretation of its authority to the detriment of the sign owner. It is required that the sign owner commit some affirmative violation beyond the mere compliance with a prior position from which the Department subsequently recedes. No such violation has been demonstrated, and the violation notice should be dismissed. The subject sign should be allowed to remain in place as a non- conforming sign.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign.
THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida.
WILLIAM B. THOMAS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987.
COPIES FURNISHED:
Philip S. Bennett, Esquire Haydon Burns Building, MS-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
A. J. Spalla General Counsel
Department of Transportation
562 Haydon Burns Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 85-3292T
CASHI SIGNS,
Respondent.
/
FINAL ORDER
The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached.
Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION (Department) has filed Exceptions to Recommended Order which are considered and addressed in this order.
The Findings of Fact in the Recommended Order are adopted except as modified or supplemented herein. The Conclusions of Law are rejected. References to the transcript will be made by the use of the abbreviation "Tr" followed by the appropriate page number.
FINDINGS OF FACT
Finding of Fact No. 11 is supplemented to reflect that lower echelon employees in the Fifth District of the Department of Transportation did not follow Department practice. They made an independent decision that the subject sign would not need a permit even though it was within 660 feet of the right-of-way of a federal-aid primary highway. (Tr: 13-16) Mr. Patrick D. Galvin, who served as State of Florida Outdoor Advertising Administrator for the Department of Transportation at the time of the subject sign permit application, testified that the Department has never changed its interpretation of the law relating to the 660 foot controlled zone along federal-aid primary highways. (Tr: 28-29, 32-33)
The Hearing Officer erred in Finding of Fact No. 9. Competent substantial evidence was introduced at the hearing that the subject sign is on the same side of the controlled highway and approximately 96 feet distant from a permitted sign. (Tr: 37-39) Respondent's diagram depicts the placement of the signs on the same side of the controlled highway. (Exhibit No. 5)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Chapter 479, Florida Statutes charges the Florida Department of Transportation with responsibility for regulation of outdoor advertising signs adjacent to federal-aid primary highways.
Section 479.11(1), Florida Statutes, provides that no sign shall be erected, used, operated, or maintained:
Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in Section
479.111 and Section 479.16.
The exceptions are not applicable to the subject sign.
Chapter 479, Florida Statutes, requires a state sign permit for any sign erected within 660 feet of any portion of right of way of a federal-aid primary highway. 3M National Advertising Co. v. Department of Transportation, Final Order, Case No. 85-3289T (Fla. Dept. of Transportation 1986). Any sign erected without the permit required by Section 479.07(1), Florida Statutes, is illegal and must be permanently removed.
Since the subject sign structure has no state sign permit even though it is within 660 feet of the right-of-way of U.S. 17/19/441, a federal-aid primary highway, and is visible from said highway, the sign is illegal and must be removed.
The Department is bound by the dictates of the statutes and has no authority except that provided by statute in granting or denying permits for signs. Under no circumstances may the state be estopped by unauthorized acts or misrepresentations of its employees or officers. Bryant v Peppe, 238 So.2d 836 Fla. 1970); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971).
The principal of equitable estoppel as proposed by Respondent is not applicable to the factual situation present in this proceeding. The essential elements of estoppel are (1) a representation by the party to be charged 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 v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984). In this case, the Department made no representation upon which Respondent relied since Respondent never submitted an application for this particular site. Any action by Respondent was not based on the representations of the Department.
The Department recognizes that an estoppel may arise against the state only under exceptional circumstances. The Florida Supreme Court has expressed this policy as follows:
[I]t may be invoked even against the exercise of governmental powers where it is necessary to prevent manifest injustice and wrongs to private individuals; provided that the restraint placed upon such governmental body to accomplish such Purpose does not interfere with the exercise of governmental power. (Emphasis added)
Trustees of Internal Improvement Fund v. Claughton, 86 So.2d 775 (Fla. 1956).
The Department has no power to allow construction of a sign without a permit at a location contrary to law, nor could district employees allow such action. Since the employees performed unauthorized acts contrary to the law and Department policy in allowing signs to be constructed without a permit, there can be no estoppel and the sign must be removed.
Further, the elements of estoppel are not present in the instant case since Respondent did not rely upon representations made by the Department. This conclusion is correct since Peterson's manager had been in the outdoor advertising business more than 20 years and testified to having familiarity with the law involved. Respondent, as an experienced licensed outdoor advertising company, was not misled into building its sign. Consequently, the second and third elements of estoppel are not applicable. In Peterson Outdoor Advertising v. Department of Transportation, Final Order, Case Nos. 85-1745T, 85-2094T, 85- 2095T, and 85-2098T (Fla. Dept. of Transportation 1986), per
curiam affirmed, No. BN-110 (Fla. 1st DCA January 16, 1987), the Hearing Officer's Conclusion of Law denying estoppel against the Department stated:
The Respondent and its personnel are experienced and knowledgeable in matters relative to outdoor advertising laws, rules, regulations and requirements The Respondent was not misled by
the Department . . . thus, the equitable doctrine of estoppel is not applicable in the circumstances.
The Department rejects Conclusion of Law No. 6 and Conclusion of Law No. 7 of the Recommended Order because no reconsideration of a prior erroneous interpretation of the statutes by the department has occurred. The Department's interpretation of the 660 foot controlled zone has always been as prescribed by statute. The fact that district employees made an erroneous interpretation and application of the law does not establish an inconsistency in the Department's position Furthermore, the Florida Department of Transportation as a state agency has no authority to commit acts in contravention of statutory authority.
The Department has not receded from a prior inconsistent position but is merely adhering to a position that has always been the policy of the Department. Subsequent to legislative authorization, departmental policies are stated in administrative rules and regulations promulgated by the Department. At the time of the permit applications in question, the Florida Administrative Code specifically stated departmental policy for signs along federal-aid highways:
[E]rected on or after January 28, 1972, in commercial and industrial zoned and unzoned areas within 660 feet of Interstate and Federal-Aid Primary Highway Systems. . . .
Rule 14-10.06, Florida Administrative Code. The District employees of the Department violated departmental policy as stated in Rule Chapter 14-10, F.A.C., as well as the Law of Florida when allowing erection of signs without permits.
In Florida it is long standing law that the doctrines of estoppel and waiver do not apply to transactions that are forbidden by statute or that arise from conduct resulting from a mistake of law. Godson v. Town of Surfside, 8 So.2d 497 (Fla. 1942); North American Company v. Green, 120 So.2d 603 (Fla. 1959);
Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1976).
In Conclusion of Law No. 7 of the Recommended Order, the cases cited by the Hearing Officer are not applicable to the instant case because of factual dissimilarities. The dispositive issue of the instant case is that the employee's mistake is a mistake of law; specifically Section 479.11(1), Florida Statutes. Further, in each case cited by the Hearing Officer the Department had brought actions to revoke permits, and the courts held that the Department could not revoke a permit for any cause not clearly within the ambit of its statutory authority. The instant case does not involve revocation of permits already issued, rather it involves an unpermitted sign. In each case cited by the Hearing Officer in the Recommended order, the sign owner was in Possession of a permit which the Department was authorized to issue and which was based on an erroneous interpretation of the applicable law at the time of issuance. There was no proof that Department employees violated concurrent statutes and rules as in the instant case. The courts held that no basis existed for revoking the permits due to a change in interpretation of the law by the Department. In Wainwright v. Department of Transportation, 488 So.2d 563 (Fla. 1st D.C.A. 1986) and C-Sand Company v. Department of Transportation, 494 So.2d 267 (Fla. 1st D.C.A. 1986), the change in interpretation revolved around whether Imperial Nurseries was a commercial activity. No such interpretation is present in the instant case. In Food-N-Fun v. Department of Transportation, 493 So.2d 24 (Fla. 1st D.C.A. 1986) and Tri-State Systems, Inc. v. Department of Transportation, 11 FLW 1946 (Fla.
1st D.C.A., September 11, 1986), the departmental interpretation of a visible commercial activity was scrutinized. Similarly, in Tri-State Systems v. Department of Transportation, 492 So.2d 1164 (Fla. 1st D.C.A. 1986), interpretation of the term "principally used as a residence" was in question. No change in departmental policy or interpretation has taken place in the instant case; the action of the lower echelon employee did not follow applicable law or policy in effect at the time of Respondent's initial permit application. Consequently, the district employees by not properly following the statutory directive, acted outside their authority.
The Department rejects the Hearing Officer's recommendation that the subject sign should be allowed to remain in place as a nonconforming sign. A "nonconforming sign," pursuant to Section 479.01(12), Florida Statutes, is specifically defined as follows:
"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 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.
The subject sign was not lawfully erected and does not qualify for the classification of nonconforming sign. The Department is without authority to consider this a nonconforming sign.
Consequently, Respondent Is not entitled to compensation for the removal of its signs. No property right is involved when the government seeks to remove an unlawful outdoor advertising sign erected in disregard of the established scheme of securing permits for such structures. Department of Transportation v. Burden, 471 So.2d 1271 (Fla. 1985). Therefore, it is
ORDERED that the subject sign owned by Respondent, located on the west side of Bennett Road, 208 feet north of State Road 50 in Orange County, Florida, is an illegal sign and shall be removed within thirty (30) days of the date of this order.
DONE AND ORDERED this 21st 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, 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, 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
- accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Copies furnished to:
William B. Thomas, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Gerald S. Livingston, Esquire
P. O. Box 2151
Orlando, Florida 32802-2151
Philip S. Bennett, 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: 85-003292
Orders for Case No: 85-003292
| Issue Date |
Document |
Summary |
|
Jan. 21, 1987 |
Agency Final Order
|
|
|
Oct. 23, 1986 |
Recommended Order
|
Violation dismissed. DOT may not seek sanctions upon reconsideration of pri- or erroneous interpretation of statute. Sign classified as non-conforming.
|
