STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs ) CASE NO. 88-3462T

) THOMAS F., TIM AND CHRISTINA SAUNDERS,)

)

Respondents. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4430T

)

MILLER'S SEAHORSE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Carrabelle, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on December 5, 1988. The Division of Administrative Hearings received the transcript of proceedings on January 10, 1989, and the parties filed proposed recommended orders on January 20, 1989. The attached appendix addresses proposed findings of fact.

The parties are represented by counsel:

For Petitioner: Vernon L. Whittier, Jr., Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

For Respondent: John F. Gilroy, Esquire

Bruce Culpepper, Esquire Haben and Culpepper, P.A. Post Office Box 10096 Tallahassee, Florida 32302

On June 3, 1988, the Department of Transportation (DOT) directed a notice of violation to "Miller's Seahorse," announcing its intention to revoke permits Nos. 721-02 and 722-02, authorizing outdoor advertising signs facing east and west on the north side of U.S. Highway 98 in Franklin County, approximately

1. miles east of the city limits of Apalachicola. As grounds, the notice stated that the "enlargement of this nonconforming sign is a violation o Rule 14-10.07(2)(a), Florida Administrative Code."

   ISSUES

   
   

   Whether DOT should revoke permits Nos. 721-02 and 722-02 because the nonconforming signs originally permitted have been replaced with a larger structure? Whether DOT is estopped to revoke the permits on these grounds where authorized personnel verbally assured the permittee, and others not in the outdoor advertising business who acted in reliance, that the replacement was not unlawful, and later stated in writing that the permits or one of them was valid?

   
   

   FINDINGS OF FACT

   
   

   1. Since 1968 (T.83) "prior to the 1972 agreement with the Feds to control outdoor advertising," (T.23) sign boards in Franklin County facing east and west, on the north side of U.S. Highway 98, a federal-aid primary highway, about 26.85 miles east of the city limits of Apalachicola, have apprised motorists of the proximity of Bill Miller Realty's offices.

      
      

   2. On October 1, 1987, members of the Saunders family acquired Lanark Plaza, a shopping center near the signpost but invisible from the highway. After learning they would not be allowed to erert a sign within 1,000 feet of Mr. Miller's signs, they proposed a two-faced "directory sign for the shopping center, and" (T.78) Mr. Miller's office, to replace the existing structure. Subject to DOT approval, Mr. Miller agreed to continue paying permit fees if they would erect and maintain the new "directory sign."

      
      

   3. Before anything was done to effectuate the agreement, Mr. Miller spoke to the late Carlton Millender, "a very blunt man . . . [who] did what was right," (T.99) and who had worked as DOT's outdoor advertising inspector since 1981 for the area around the Carrabelle maintenance yard, including the site at issue. He was authorized to represent DOT on questions concerning the placement of signs and the validity of sign permits, and had turned down more than one sign proposal Saunders family members had made.

      
      

   4. Mr. Millender told Mr. Miller and, later, Christine Saunders that they could replace the sign that then existed with another, taller sign, but that they could not put up a sign any wider than the eight foot width of the sign faces then standing. "[I]f you are going to increase some height to it, he said, I don't see any objection to it, but I would suggest you write DOT in Chipley and get their blessing or whatever." (T.79-80).

      
      

   5. Mr. Miller did write DOT's offices in Chipley, to the attention of Milford C. Truette,

      
      

      and told him what [they] wanted to do, and that [he] had talked to the supervisor here, and it was almost getting time for renewing the permit anyhow. . . . [H]e requested that if there [was] any increase in the fee for raising the heigh[t] of the sign, please let [him] know. . . . (T. 80)

      
      

      He received no reply, which he told Mr. Millender. Meanwhile Ms. Saunders "had a man in Panama City draw the design" (T.96) and, toward the end of October or the beginning of November, showed Mr. Millender the completed design, Respondents' exhibit No.3., depicting a sign eight feet wide and about nine feet tall, five feet taller than the sign it was to replace.

   6. Mr. Saunders "presented a copy of the plans to Mr. Millender . . . [and they] talked at length about the enlargement of the sign, that it would not be made any wider, but it would be made taller. . . ." (T.101) "When he said that all [they] needed to do was send a letter stating that it was going to be enlarged, requesting a fee change, [she] took that to mean everything was in order," (T.106) and contracted to have the sign built.

      
      

   7. Eleven hundred dollars or more in materials went into the sign, which ended up being eight feet wide and approximately eleven feet tall. The Saunders worked on it themselves and they hired a laborer at ten dollars an hour. In

      mid-February of 1988, they took the old sign down and put the new sign up in its place, "within the jurisdiction of the DOT because it's . . . within a certain distance of highway 98." (T. 36) .

      
      

   8. The sign stands on land owned by Arthur T. Allen, Jr. "on the corner of the . . . second tee" (T. 87) of the Lanark Village Golf Club's golf course. The privately owned club charges fees for use of the course, which lies within an area designated R-1 on detail map B of the Franklin County zoning map, DOT's Exhibit No.3., adopted by reference on June 22, 1981.

      
      

   9. Nobody signed or sealed the detail map, which was not available for review until the night the County Commission adopted it. Although James T. Floyd, formerly the county planner, testified the detail map was in a sense unreliable and inaccurate, "it is the only document available" (T.72) to show existing zoning. According to the map, not only the shopping center, which "has been commercial since the 1940's, really" (T.72) but the pumping station, as well, lie within the R-1 residential zone. The parties stipulated that the future land use map filed and adopted with Franklin County's comprehensive plan in 1981 designated the area "low density residential." (T.76)

      
      

   10. On March 2, 1988, DOT's Mr. Truette visited the sign. At some point, Mr. Truette had spoken to a Mr. Kubicki, who was concerned about the legality of the new structure. After the site visit, on March 10, 1988, with knowledge of the new sign's size, and that the new structure was taller than the old, having been informed of the zoning in the area, and fully aware of the controversy surrrounding the sign, Mr. Truette wrote Mr. Floyd, then still in Franklin County's employ: "This is to inform you that state sign permit number 721-01 is a valid permit." Respondent's Exhibit No. 1. At hearing, Mr. Truette said he had meant only that the permit had not yet been revoked. It was he who signed the notice of violation on June 3, 1988.

       
       

       CONCLUSIONS OF LAW

       
       

   11. DOT is authorized to "revoke any permit . . . granted under . . . chapter [479] in any case in which it determines that . . . the permittee has violated any of the provisions of chapter [479]," Section 479.08, Florida Statutes (1987), unless others have relied to their detriment on departmental misrepresentations so that DOT is estopped. See, e.g., Tri-State Systems, Inc.

       v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986). When DOT referred this matter to the Division of Administrative Hearings, the Division of Administrative Hearings assumed "jurisdiction over the formal proceeding," Section 120.57(1)(b)3., Florida Statutes (1987), pending entry of a recommended order.

       
       

   12. License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vinin vs. Florida Real Estate Commission, 281 So.2d 487,

       491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391

       (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, applicable statutes, and rules.

       
       

   13. DOT invokes the statutory definitions of "commercial or industrial zone," "maintain" and "nonconforming sign." The last is defined, 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 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.

       
       

       Section 479.01, Florida Statutes (1987).

       
       

       All parties seem to concede that the sign Mr. Miller originally erected complied with the legal requirements then extant. After enactment of the restrictions now set out in Section 479.111, Florida Statutes (1987), however, no other outdoor advertising signs could be permitted in the vicinity, on account of the zoning. Section 479.111, Florida Statutes (1987), provides

       
       

       Only the following signs shall be allowed within controlled portions of . . . the federal-aid primary highway system . . . .

       (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.

       
       

       Since the preexisting sign faces were "grandfathered," the first issue is whether the new structure maintains this nonconforming but lawful status or whether it "become[s] illegal . . . [because it has not been] maintained in accordance with all applicable laws, rules, ordinances or regulations other than the provision that makes it nonconforming." Section 479.24(1), Florida Statutes (1987).

       
       

   14. By rule not challenged here, DOT has taken the position that "repair or refurbishing of a sign that enlarges the dimensions of the sign facing," Rule 14-10.007(2)(a), Florida Administrative Code, "shall be considered erection of a new sign . . ." Id. Unless DOT is estopped to do so, applicable statutes and

       rule provisions authorize revocation because a new sign has in fact been erected, one with enlarged sign facing.

       
       

       DOT Estopped

       
       

   15. But the evidence establishes each of the elements the cases require a citizen to prove in order to make out an estoppel against a government agency. That a government agency may be estopped is clear. Tri-State Systems, Inc. v. Department of Transportation, 507 So.2d 613 (Fla. 1st DCA 1987); Occidental Chemical Corp. v. State Department of Environmental Regulation, 501 SO.2d 674 (Fla. 1st DCA 1987); Tri-State Systems, Inc. v. Department of Transportation,

       500 So.2d 212 (Fla. 1st DCA 1986); Chipley Motel v. Department of Transportation, 498 So.2d 1357 (Fla. 1st DCA 1986); Kuge v. State Department of Administration, 449 SO.2d 389 (Fla. 3d DCA 1984). Equitable estoppel is available against the state

       
       

       although only in exceptional circumstances, upon a showing of the following elements:

       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, caused by the representation and reliance thereon.

       
       

       Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215-6 (Fla. 1st DCA 1986)

       
       

       In the present case as in Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986), authorized DOT personnel represented that sign permits were valid, then initiated proceedings in which the agency asserted the invalidity of the same permits, after citizens had acted to their detriment, in reliance on DOT's original assurances.

       
       

   16. The two feet in height by which the sign as built exceeded the sign as planned do not preclude estoppel, because the difference was not material under the view Mr. Millender espoused, on which the respondents relied. In this connection, Mr. Truette's letter, written after a visit to the site, is of particular interest. This case is distinguishable from Nelson Richard Advertising v. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA), in which the applicant supplied erroneous information that would have made a difference under the view DOT consistently held.

       
       

   17. Nor is this a case like Chipley Motel v. Department of Transportation,

498 So.2d 1357 (Fla. 1st DCA 1986) in which DOT was unaware, when it issued the permit, that the area in question was zoned commercial, but was nevertheless held estopped to revoke the permit, because the applicant had not misrepresented the zoning. Here DOT had full knowledge of all the pertinent facts. In Tri- State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986), the private parties, like the Saunders respondents here, originally had no interest in the signs. There the court protected a commercial outdoor advertising concern, presumably well-acquainted with the intricacies of the law governing outdoor advertising signs, against revocation of permits it had acquired in reliance on DOT's verbal representations of their validity. Here proprietors of small businesses, without expertise in advertising, acted to

their detriment, in justifiable reliance on representations concerning permit validity that were later reduced to writing.

RECOMMENDATION

In accordance with the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That DOT dismiss the notice of violation, and take no action against permits Nos. 721-02 and 722-02.

DONE and ENTERED this 20th day of February, 1989 in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 2, and 3 have been adopted, in substance, insofar as material, except that Truette's meeting with Floyd was not the first contact he had with anybody about the sign. Whether or not the record established the month of Mr. Millender's death, the parties agree that he died in January.

Respondent's proposed findings of fact Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,

13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25 and 27 have been adopted, in substance, insofar as material.

With respect to respondents' proposed finding of fact No. 1, it was not clear just which members of the Saunders family owned what.

With respect to respondents' proposed finding of fact No. 12, while no money is to be paid Mr. Miller, he is to receive consideration in the form of upkeep.

With respect to respondents' proposed finding of fact No. 21, they spent approximately $1100 plus whatever they paid the laborer.

Respondents' proposed finding of fact No. 26 has been rejected as unsupported by the weight of the evidence.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

John F. Gilroy, Esquire Bruce Culpepper, Esquire Haben and Culpepper, P.A. Post Office Box 10096 Tallahassee, Florida 32302

Kaye N. Henderson, Secretary Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-003462

Orders for Case No: 88-003462