STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2193T

)

CREATIVE MEDIA OUTDOOR )

ADVERTISING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on January 8, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr.

Assistant General Counse Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Gerald S. Livingston

Kreuter & Livingston, P.A. Suite 1150

200 East Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is entitled to a sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether the sign which has been erected at that location is in violation of applicable provisions of Chapter 479, Florida Statutes.

PRELIMINARY STATEMENT

This case began on February 5, 1990, when the Department of Transportation (Department) charged the Respondent, Creative Media Outdoor Advertising (Creative Media), with violations of laws or rules regulating outdoor advertising signs. More specifically, the Department alleged that a sign located 100 feet east on SR 426 along Interstate 4 (I 4) violated Section 479.07(1), Florida Statutes, since it did not have a sign permit; violated Section 479.07(9)(a)1, Florida Statutes, since it failed to meet the spacing requirements related to sign on an Interstate; and violated Section 479.02(1), Florida Statutes, and Rule 14-10.006(b)5, Florida Administrative Code, since it was located within 500 feet of a restricted interchange.

On or about February 21, 1990, the Respondent filed an application for a permit for the sign which is the subject matter of this case. The Department issued a memorandum of returned application on March 9, 1990, which again specified that the sign application was not approved because it did not meet spacing requirements and was within 500 feet of a restricted interchange. On March 28, 1990, the Respondent filed a request for an administrative review of the Department's denial, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on April 9, 1990.

At the hearing, the Department presented the testimony of the following witnesses: Michael Dollery, an outdoor advertising inspector employed by the Department; and Peter Wright, administrator for the outdoor advertising section for Orange County, Florida. The Department's exhibits numbered 1, 2, 3a, 3b, 3c, 4, 5, 6, and 7 were admitted into evidence.

The Respondent presented the testimony of Peter Fekete, president of Creative Media; and Peter Wright. The Respondent's exhibit 1 was admitted into evidence. The transcript of the proceedings was filed with the Division of Administrative Hearings on January 22, 1991. The parties waived the requirements of Rule 28-5.402, Florida Administrative Code, and were granted twenty days from the filing of the transcript within which to file their proposed recommended orders.

The parties' proposed recommended orders have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is authorized pursuant to Chapter 479, Florida Statutes, to regulate outdoor advertising signs.

   
   

2. The Respondent owns or controls an outdoor advertising sign (subject sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the centerline of I 4.

   
   

3. The sign face and direction of the subject sign are visible from I 4 following that route as it is normally traveled, i.e. on the main-traveled way.

   
   

4. The subject sign is no more than 480 feet from the interchange at Fairbanks and I 4.

   
   

5. The subject sign was erected in June, 1979, when SR 424 was not designated a federal aid primary road and a state permit was not required. On May 17, 1979, the Department's then district sign coordinator issued a letter to Respondent in response to Creative Media's sign permit application which provided that "a state permit is not required at this time." (e.s.)

   
   

6. The Respondent's application in 1979 specified that the sign location was not within city limits which is presumed true for purposes of this record. Further, the 1979 application specified that the sign would be located .1 of a mile (presumably 528 feet) from the intersection. That description of the proposed sign is also presumed true.

7. Subsequently, Fairbanks became a part of the state highway system and a requirement for outdoor advertising permits for signs erected along that roadway became effective. The sign face for which the present permit is sought is within 500 feet of the I 4 interchange.

   
   

8. On January 30, 1990, Inspector Dollery photographed the subject sign which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental Apartments at Heathrow". When Inspector Dollery visited the location on January

   3 and 4, 1991, the sign face was painted white with only a telephone number (425-5100) depicted.

   
   

9. On February 5, 1990, the Department's current district outdoor advertising administrator issued a notice of alleged violation regarding the subject sign.

   
   

10. On February 26, 1990, the Respondent filed an application for a permit for the sign face in dispute. The 1990 application acknowledged that the sign was 480 feet from the I 4 intersection.

    
    

11. The Department returned the application as not meeting the spacing requirements for signs facing I 4 and for being less than 500 feet from the interchange.

    
    

12. POA Acquisition, an outdoor advertising company, holds permits for signs located on I 4 which are within 1500 feet of the subject sign.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

14. Section 479.01, Florida Statutes, provides, in pertinent part:

    
    

    1. "Business of outdoor advertising" means the business of constructing, erecting, operating, using, maintaining, leasing, or selling outdoor advertising structures, outdoor advertising signs, or outdoor advertisements.

    2. "Commercial or industrial zone" means an area within 660 feet of the nearest edge of the right-of-way of the interstate or

       federal-aid primary system zoned for commercial or industrial use under authority of state law.

    3. "Department" means the Department of Transportation.

    4. "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign.

    5. "Federal-aid primary highway system" means the existing, unbuilt, or unopened system of highways or portions thereof designated as the federal-aid primary highway system by the department.

       * * *

       (7) "Interstate highway system" means the existing, unbuilt, or unopened system of highways or portions thereof designated as the national system of interstate and defense highways by the department.

       * * *

       (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.

       * * *

       1. "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or

          double-faced display, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the

          main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected,

          caused to be erected, or approved by the department.

       2. "Sign direction" means that direction from which the message or informative contents are most visible to oncoming traffic on the

          main-traveled way.

       3. "Sign face" means the part of the sign, including trim and background, which contains the message or informative contents.

       * * *

       (19) "State Highway System" means the existing, unbuilt, or unopened system of highways or portions thereof designated as the State Highway System by the department.

       * * *

       (23) "Visible sign" means that the advertising message or informative contents of a sign, whether or not legible, is capable of being seen without visual aid by a person of normal visual acuity.

15. Section 479.02, Florida Statutes, provides, in part: It shall be the duty of the department to:

    1. Administer and enforce the provisions

       of this chapter and the agreement between the state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and federal regulations in effect as of the effective date of this act;

    2. Regulate size, height, lighting, and spacing of signs permitted in zoned and unzoned

       commercial areas and zoned and unzoned industrial areas on the interstate highway system and the federal-aid primary highway system;

       * * *

       (7) Adopt such rules as it deems necessary or proper for the administration of this chapter, including rules which identify activities that may not be recognized as industrial or commercial activities for purposes of determination of an area as an unzoned commercial or industrial area.

       
       

16. Section 479.07, Florida Statutes, provides, in part:

    
    

    1. Except as provided in s. 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section.

       * * * (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

       1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.

       2. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway.

       The minimum spacing provided in this paragraph does not preclude the permitting of V-type, back-to-back, side-to-side, stacked, or

       double-faced signs at the permitted sign site.

17. Section 479.11, Florida Statutes, provides, in pertinent part:

    
    

    No sign shall be erected, used, operated, or maintained:

    1. 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 ss.

       479.111 and 479.16.

       
       

18. Rule 14-10.006, Florida Administrative Code, provides, in part:

    
    

    1. The following shall apply to signs for which the initial valid permit application was submitted on or after July 1, 1984:

       * * *

       (b) Spacing.

       * * *

       4. No two permitted structures shall be spaced less than one thousand five hundred (1,500)

       feet apart on the same side of an interstate highway.

       * * *

    2. The criteria for regulating signs that were conforming on July 1, 1984 shall be as provided in Rule 14-10.009 of this chapter.

       
       

19. Rule 14-10.009, Florida Administrative Code, established the agreement between the State of Florida and the U.S. Department of Transportation. That rule specified that signs were not to be erected within 500 feet of an Interstate highway interchange when outside incorporated towns and cities.

    
    

20. Based upon the foregoing, and presuming the Respondent was truthful in the application filed in 1979, it is clear that in 1979 the subject sign face was to be erected 528 feet from the interchange in an unincorporated area along a roadway which was not otherwise state controlled for outdoor advertising signs. The Department's agent correctly concluded that a state permit for the sign was not required since Fairbanks was not then considered part of the state roadway system. Further Department action was not required.

    
    

21. In fact, however, Respondent constructed the sign less than 500 feet from the interchange. In accordance with the agreement reached in 1972 with the

    U.S. Department of Transportation, the Department should have notified the Respondent that the sign location was not acceptable as it violated the provision requiring 500 feet spacing from the interchange in the unincorporated area.

    
    

22. Thus, the essential issue in this case is then whether the Department is now estopped from asserting the violation established in this case. Estoppel requires 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 (Fla. 1st DCA 1986). The Respondent has not established that the Department issued a representation that is contrary to a later-asserted position. Presumably, the Department was acting on the information contained in the 1979 application when

    it issued the letter dated May 17, 1979. If the allegations of that application were accurate, the Department correctly indicated that a state permit was not required at that time.

    
    

23. The issue then becomes, what caused the Department to delay in determining that the sign was within the prohibited distance of the Interstate highway interchange? And, whether that delay constitutes a "representation" upon which Respondent relied. The answers to these questions must be in the negative. Creative Media had already constructed the sign face (contrary to the application specifics) and had only relied on the representation that Fairbanks was not then a Federal Aid Primary (which meant a permit was not then required). That fact, Fairbanks is not a Federal Aid Primary, is still accurate. The Department is not estopped from requiring that this sign comply with the spacing requirement of 500 feet from the I 4 interchange. Thus the Department has established that the subject sign is in violation of the requirements of Rule

    14-10.006, Florida Administrative Code.

    
    

24. As to its request for a permit for the subject sign, Creative Media has not shown that the subject sign face could meet that requirement.

    
    

25. Since the sign cannot be permitted for the foregoing reason, no conclusion is reached as to whether the subject sign is "on" I 4 for the purpose of meeting spacing requirements for signs along that roadway.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Transportation enter a final order finding the subject sign in violation of the rule as set forth in the notice of alleged violations dated February 5, 1990, and denying the permit application of the Respondent.

DONE and ENTERED this 22nd day of April, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1991.

APPENDIX TO CASE NO. 90-2193T

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 3 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

The six unnumbered paragraphs are addressed in the order presented.

1. The first paragraph is accepted.

2. The second paragraph is accepted.

3. The first sentence of the third paragraph is accepted. The second sentence of the third paragraph is rejected as contrary to the weight of the credible evidence or irrelevant if intended to establish that a DOT official told Mr. Fekete to retain paperwork.

4. The fourth paragraph is rejected as contrary to the weight of the credible evidence.

5. If the sign had been constructed as represented on the application, the fifth paragraph could be accepted; however, Respondent did not build the sign as stated in the 1979 application nor can it be determined from this record whether the spacing requirements along I 4 could have been met in 1979. Certainly, for a sign facing on Fairbanks, the spacing requirements could have been met. The distance from the interchange is ultimately why Respondent's application would have failed in 1979 if accurately requested. Consequently, as drafted, the fifth paragraph must be rejected as contrary to the weight of the evidence.

6. The sixth paragraph is accepted.

COPIES FURNISHED:

Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Gerald S. Livingston Kreuter & Livingston, P.A.

200 East Robinson Street Suite 1150

Orlando, Florida 32801

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

ATTN: Eleanor F. Turner, M.S.58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002193

Orders for Case No: 90-002193