STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7182T

)

HAVEN FURNITURE CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 20, 1994 in Lakeland, Florida.

APPEARANCES

For Petitioner: Thomas H. Duffy, Esquire

Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwanee Street, Mail Station 58

Tallahassee, Florida 32399

For Respondent: Glen T. Shelby, Esquire

Post Office Box 3225 Lakeland, Florida 33802

STATEMENT OF THE ISSUES

Whether Respondent has erected or maintained a sign in the right-of-way of State Road 37 and, if so, should it be removed.

PRELIMINARY STATEMENT

By its notice of violation dated April 5, 1993, Petitioner, Department of Transportation, ordered Respondent to permanently remove, within ten working days, a base concrete sign from the State Road 37 Polk County, Florida right-of- way for alleged violation of Section 479.11, Florida Statutes. Respondent objected to the notice and requested a formal hearing. Based on that request, this hearing ensued.

Additionally, Respondent was also given two other notices of violation for a portable sign and a series of flag poles along the highway. The portable sign and the flag poles were immediately removed by Respondent and are not at issue in this hearing.

At the hearing, Respondent amended its answers to certain requests for admissions and requests numbered 3, 4 and 5 were admitted by Respondent.

At the hearing, Petitioner presented the testimony of Eugene F. Casey, a right-of-way inspector employed by Petitioner and James Dunsford, Petitioner's District Administrator and an employee of approximately 23 years. Petitioner introduced three exhibits which were received in evidence at the hearing.

Respondent presented the testimony of James Claussen, Respondent's president and general manager and introduced three exhibits which were also received in evidence at the hearing.

The parties filed proposed recommended orders on May 10, 1994 which were received and considered in preparation of this recommended order. Petitioner's proposed findings are substantially incorporated in this recommended order.

Proposed findings which were not incorporated herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while testifying, I hereby make the following relevant:

FINDINGS OF FACT

1. On April 15, 1993, Petitioner, the Department of Transportation, served a Notice of Violation on Respondent, Haven Furniture Co., Inc., advising that it had erected and maintained a portable sign, a fixed concrete sign and several flag poles advertising its business which were improperly placed in the right- of-way on State Road 37 in Polk County, Florida. State Road 37 is a roadway maintained by Petitioner. Only the fixed concrete sign is at issue herein.

   
   

2. The concrete sign bears the legend "Claussen's Fine Furniture". The sign measures more than thirty feet long, is made of cement and steel and is anchored in the ground to withstand wind shear. It is situated perpendicular to State Road 37. The sign was erected in April of 1991.

   
   

3. Respondent admits that most of the sign is situated within the right- of-way of State Road 37. The sign is located approximately 56 feet from the edge of State Road 37. The inside edge of the sign is approximately 56.2 feet from the edge of the roadway. The right-of-way at that location extends approximately 88 feet from the edge of the roadway. As such, the sign is located upon the right-of-way of State Road 37. Additionally, Respondent admits that Petitioner has not given permission for the sign to occupy a portion of the right-of-way.

   
   

4. Respondent did not speak to representatives of Petitioner prior to erection of the sign in question. Likewise, Respondent did not check the official property records of Polk County or commission a survey to determine the right-of-way prior to erecting the sign. Petitioner's agents did not see the sign when it was being erected in 1991.

   
   

5. Prior to erecting the sign, Respondent obtained a permit from Polk County. In applying for the permit, Respondent spoke to Bill Padgett, Polk County's Code Inspector in Lakeland, Florida.

   
   

6. Padgett assisted Respondent in completion of the application and considered the pertinent wind shear specifications. Padgett generally advised Respondent as to the particulars for proper erection of the sign to comply with Polk County's regulations. In this regard, Padgett went to the site where the

   sign would be erected. Padgett walked off the area where the sign would be situated to the center of the highway and gave Respondent an estimate of what he considered to be the right-of-way for State Road 37.

   
   

7. Padgett is an employee of Polk County. He is not authorized to give permission to an owner, as Respondent, for the erection of a sign in a road right-of-way that is maintained by Petitioner. As such Padgett is not an agent of Petitioner and representations and authorizations by Padgett are not binding upon Petitioner.

   
   

8. Respondent immediately removed the portable sign and the flag poles which were included in the three notices of violation in an effort to obtain some leniency from Petitioner such that the concrete sign at issue can remain situated in the right-of-way.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. The authority of the Petitioner is derived from Chapter 479, Florida Statutes.

    
    

12. Subsection 479.11, Florida Statutes provides, in pertinent part, that no sign shall be erected, used, operated, or maintained:

    
    

    (8) which is located upon the right-of-way

    of any highway on the state highway system . . . .

    
    

13. Petitioner has established, by competent and substantial evidence, that Respondent is maintaining a sign which is located upon the right-of-way of a state highway (State Road 37) within the purview of Section 479.11(8), Florida Statutes.

    
    

14. While counties are political subdivisions of the state (Article 8, Section 1(a), Florida Constitution), county officials and employees are not agents of the state and cannot bind state government by their statements, conduct, or other representations. See, Amos v. Matthews, 126 So.318, 321 (Fla. 1930).

    
    

15. Petitioner is not estopped from ordering the removal of the sign from its right-of-way. Generally, estoppel against a government is a drastic sanction that rarely is invoked. See, for example, State Department of Revenue

    v. Anderson, 403 So.2d 397 (Fla. 1981). Here, Respondent has not shown that the sufficient elements to invoke estoppel are appropriate here.

    
    

16. Petitioner is authorized to demand the removal of Respondent's sign under the authority granted in Subsection 479.107(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner issue a final order directing that the sign in the right-of-way on State Road 37 adjacent to Respondent's property be removed at Respondent's expense within thirty (30) days of its final order.

DONE AND ENTERED this 17th day of June, 1994, in Tallahassee, Florida.

JAMES E. BRADWELL

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 17th day of June, 1994.

APPENDIX

IN CASE NO. 93-7182T

Rulings on Petitioner's proposed findings of fact:

Paragraph 3, adopted as modified, paragraph 9, recommended order. Paragraph 3, adopted as modified, paragraph 9, recommended order. Paragraph 6, adopted as modified, paragraph 4, recommended order.

Rulings (Comments) on Respondent's proposed findings of fact:

Respondent's proposed findings are included in two unnumbered paragraphs which were considered. The proposed findings are, in large part, adopted in the recommended order. However, the proposed finding relative to the position that Petitioner's agent, Dunsford, saw the sign being constructed and did nothing for more than two (2) years is specifically rejected, paragraph 4, Recommended order. Additionally, Respondent's proposed finding that agent Casey saw another sign which allegedly was a violation was rejected as irrelevant.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, M.S. 58 Haydon Burns Building

605 Suwanee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel Department of Transportation

Haydon Burns Building

562 Suwanee Street

Tallahassee, Florida 32399-0450

Thomas H. Duffy, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwanee Street, M.S. 58

Tallahassee, Florida 32399

Glen T. Shelby, Esquire Post Office Box 3225 Lakeland, Florida 33802

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: 93-007182

Orders for Case No: 93-007182