STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POZ OUTDOOR ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-4679T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on March 31, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert S. Cohen, Esquire

Pennington, Moore, Wilkinson & Dunbar, P.A. Post Office Box 10095

Tallahassee, Florida 32302

For Respondent: Andrea V. Nelson

Assistant General Counsel Department of Transportation 605 Suwannee Street

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

STATEMENT OF THE ISSUES

Whether Petitioner’s application for a permit for an outdoor advertising sign should be granted.

PRELIMINARY STATEMENT

On June 19, 1996, Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application with Respondent, Department of Transportation (Department) for a state outdoor sign permit to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. The Department denied the application on July 16, 1996, stating that the site for the sign was within

500 feet of a restricted interchange or intersection grade.

Petitioner requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge.

At the final hearing, Petitioner called Richard Pozniak and Barbara Pozniak at its witnesses. The testimony of Adam Pozniak and Greg Kulinski were presented by deposition. Petitioner’s Exhibits 1-6 were admitted in evidence. Respondent called John Garner and Robert Born as its witnesses. Respondent’s Exhibits 1-7 were admitted in evidence.

The parties agreed to file proposed recommended orders within ten days of the date of the filing of the transcript. The transcript was filed on April 29, 1997. Petitioner filed its proposed recommended order on May 8, 1997, and Respondent filed its proposed recommended order on April 24, 1997.

FINDINGS OF FACTS

1. Petitioner, Poz Outdoor Advertising, Inc. (Poz), filed an application dated June 19, 1996, with the Department of Transportation (Department) for an outdoor advertising sign permit.

2. The application stated that the sign was to be located at I-95 approximately 2500 feet north of Midway Road in St. Lucie County, Florida. Additionally the application provided that the sign would not be located within city limits.

3. The Department issued a Notice of Denied Application to Poz on July 16, 1996, stating the application was not approved because the “site is within 500 feet of a restricted interchange or intersection at grade," citing Rule 14-10.006(1)(b)5, Florida Administrative Code.

4. The Department uniformly interprets Rule 14-

   
   

   10.006(1)(b)5, Florida Administrative Code. In the mid-80’s, the Department's central office sent out a diagram and instruction memo to all district staff explaining the measurement and distance requirements in Rule 14-10.006(1)(b)5.

5. Based on the methodology used by the Department for measuring compliance with Rule 14-10.006(1)(b)5, the site of the sign proposed by Poz is within 500 feet of a restricted interchange.

6. The area where I-95 crosses or intersects with Midway Road is called an interchange.

7. Petitioner claims that the Department has approved other signs which are within 500 feet of a restricted interchange, namely, signs with permit numbers BM 097 and BM 096, located at the east side of I-95 and State Road 514; signs with permit numbers BM 819 and BM 820 located at the west side of I-95 and State Road 516; and signs with permit numbers BM 825 and BM 826 located at the west side of I-95 and State Road 514.

8. The signs with permit numbers BM 096 and BM 097 are located within the city limits of Palm Bay according to the approved applications for those signs.

9. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 825 AND BM 826 are located within city limits.

10. According to the information contained in the Department’s computerized outdoor advertising location information, the signs with permit numbers BM 819 and BM 820, are located within city limits.

11. Petitioner also claims that the sign located at the interchange of I-95 and State Road 60 was within 500 feet of a restricted interchange. This sign is located in an unincorporated area of Indian River County. A sign was erected in this location in 1973 and was replaced with another sign at the same location in 1991. The county building permit for the restructured sign was issued conditioned upon the applicant

    receiving approval from the “State of Florida Right of Way Administration.” No evidence was presented to show that such approval was sought from or given by the Department. No evidence was presented to establish that the Department was aware that the sign had been restructured.

12. Richard Pozniak, the husband of one of the owners of Poz, testified that a former sign inspector for the Department, Vanna Kinchen, had showed him how to measure for proposed sign sites. Ms. Kinchen rode out with Mr. Pozniak to a location about five miles from the interchange at issue and taught Mr. Pozniak how to measure from the interchange. Ms. Kinchen was not involved with the site at issue and was no longer a sign inspector at the time that Poz made the application for a permit of the site at issue.

13. All interchanges are not constructed alike.

    
    

14. Richard Pozniak and his wife, Barbara, measured the site which is at issue. Mr. Pozniak computed the distance from the interchange to the site by measuring 500 feet from the safety zone or gore area on I-95. The gore area is located on the inside of an entrance or exit ramp rather than along the outside of the widening of the pavement.

15. In determining whether the site is within 500 feet of the interchange, the Department measures 500 feet beyond the widening of the entrance ramp onto I-95. The site proposed by

    Poz was located in the area before the widening of the ramp ends. A sign cannot be placed in the area.

16. The logo program is a federally funded program. The requirements for the issuance of an outdoor advertising permit is different from the requirements for a business to display its logo in the logo program. In the logo program, the business is limited to displaying its logo on a Department sign structure located on the interstate.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

18. Poz’ application was denied because the site did not comply with Rule 14-10.006(1)(b)5, Florida Administrative Code, which provides:

Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main- traveled way on an interstate highway.

19 The site for the structure listed on Poz’ application is located within 500 feet of an interchange outside an incorporated area. The site does not meet the requirements of Rule 14- 10.006(1)(b)5, Florida Administrative Code, and a permit should not be issued for the sign..

1. Poz argues that the Department has permitted other signs located within 500 feet of an interchange, specifically signs BM 096-35, BM 097-35, BM-825-35, BM 0836-35, AND BM 820-35. The signs are located within an incorporated area. Therefore, Rule 14-10.006(1)(b)5 does not apply.

2. The permitted sign which is located at I-95 and SR 60, is within 500 feet of an interchange and is located in an unincorporated area. However, the sign was originally erected in 1973, prior to the promulgation of Rule 14-10.006(1)(b)5. According to the staff at the Department, the sign was “grandfathered in “ because it was erected prior to promulgation of the rule governing spacing of signs in unincorporated areas. The sign was rebuilt in 1991 but there is no evidence that the owner notified the Department that the sign had been rebuilt and there is no evidence that the owners applied to the Department for a permit for the rebuilt sign. The Department was unaware that the sign had been rebuilt and takes the position that if the sign has been rebuilt that it is does not comply with Rule 14- 10.006(1)(b)5. Poz has not demonstrated selected enforcement of Rule 14-10.006(1)(b)5.

3. The Florida Legislature mandated that the Department establish a logo program. Section 479.261(1), Florida Statutes, provides:

   The department shall establish a logo sign program for the rights-of-way of the interstate highway system to provide information to motorist about available gas,

   food, lodging, and camping services at interchanges, through the use of business logos. . . .

   
   

4. Poz alleges that the Department creates a competing advertising interest when it allows businesses to place their logos on the interstate right of way. The logo program is a federally funded program that allows businesses to display their logos to advise motorists of services they may require while they are traveling on the interstate system. The requirements for outdoor advertising permits and the logo program are different. Whether the Department has a logo program is irrelevant to the issue in this proceeding.

5. Poz argues that the Department is estopped from taking the position that the method to compute the distance from the interchange is to measure from the end of the widening of the ramp rather than from the safety zone because of the advice that Mr. Posniak received from a sign inspector who is no longer with the Department.

6. The Florida Supreme Court has recognized that equitable estoppel can be invoked against a state agency when justified by the facts. Florida Livestock Board v. Gladden, 76 So.2d 291

   (Fla. 1954). In Dolphin Outdoor Advertising v. DOT, 582 So.2d 709 (Fla. 1st DCA 1991), the court discussed the elements of equitable estoppel:

   The doctrine of equitable estoppel may be applied against the state rarely and under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla. 1959).

   This court has considered other cases in which an outdoor sign permit holder has sought to have DOT estopped from revoking sign permits. See, T and L Management v. Dept. of Transportation, 497 So.2d 685 (Fla. 1st DCA 1986); Chipley Motel v. Dept. of Transportation, 498 So.2d 1357 (Fla. 1st DCA 1986), app. dismissed, 503 So.2d 326 (Fla.

   1987); and Tri-State Systems, Inc. v. Dept. of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987). This court observed in Tristate that any decision regarding the application of

   equitable estoppel depends upon properly made finding of fact as to each of the three elements of estoppel: (1) a representation as to 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. 500 So.2d at 215-216.

   Id. at 710-711.

   
   

7. Whatever advice the former employee gave to Mr. Posniak, the information was concerning a specific site location, not the location at issue. The testimony does not indicate whether the site is an incorporated area nor does it indicate that the configuration of the interchange is the same configuration as the one involved in the instant case. The advice was given to aid Mr. Posniak in filling out an application for a specific location. The application does not call for the measurement specified in Rule 14-10.006(1)(b)5. The inspector will determine that measurement after receiving the application. The information on the application is to give the location of the site. In the instant case, the application states that the site is located 2500 feet from the nearest intersection, 2000 feet

   from the nearest permitted sign, and 25 feet from the right of way. There is no place to indicate on the application whether the site is within 500 feet of an interchange.

8. In Dolphin Outdoor Advertising, supra, the court found the Department of Transportation was estopped from denying a permit when the Department’s agent told the applicant that its permit was “fine.” In the instant case, there was no such representation as to the specific application at issue. Poz has not established that there was a material misrepresentation made by the sign inspector; thus, Poz has not established the first element for equitable estoppel.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered denying Petitioner, Poz Outdoor Advertising, Inc.’s application for a permit for an outdoor sign at I-95 and Midway Road in St. Lucie County, Florida.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1997.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997.

COPIES FURNISHED:

Robert S. Cohen, Esquire

Pennington, Culpepper, Moore, Wilkinson Dunbar & Dunlap, P.A.

Post Office Box 10095 Tallahassee, Florida 32302

Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street, MS-58

Tallahassee, Florida 34399-0450

Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004679

Orders for Case No: 96-004679