STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POZ OUTDOOR ADVERTISING, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-1704T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on October 24, 1997, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: Robert S. Cohen, Esquire

Martha J. Edenfield, Esquire

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

Tallahassee, Florida 32302

For Respondent: Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

At issue in this proceeding is whether Petitioner's applications to erect a steel monopole which would support a two- sided outdoor advertising sign to be located west of Interstate Highway 95 (I-95), 2,244 feet north of I-95's intersection with

Indrio Road, St. Lucie County, Florida, should be approved.

PRELIMINARY STATEMENT

On February 20, 1997, Respondent, Department of Transportation (Department), notified Petitioner, POZ Outdoor Advertising, Inc. (POZ), that its permit applications to erect a steel monopole which would support a two-sided outdoor advertising sign to be located west of Interstate Highway 95

(I-95), and 2,244 feet north of I-95's intersection with Indrio Road, St. Lucie County, Florida, were denied.1 The predicate for denial was the Department's conclusion that the proposed site was within 500 feet of a restricted interchange or intersection at grade, contrary to the provisions of Rule 14-10.006(1)(b)5, Florida Administrative Code.

POZ filed a timely petitioner for formal administrative hearing to contest the Department's decision. Consequently, on April 2, 1997, the Department forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

Here, POZ does not contest, and indeed the proof confirms, that the proposed site was within 500 feet of a restricted interchange or intersection at grade, as found by the Department. Rather, the issues raised by Petitioner and its position are stated in the prehearing stipulation as follows:

The issue for determination in this proceeding is whether the Department through

its sign inspector, Vana Kinchen, showed Petitioner how and where to measure distance for the placement of an outdoor advertising sign at the site which is the subject of this proceeding. Petitioner relied upon the information supplied by Ms. Kinchen and received approval from St. Lucie County for placement of the sign subject to approval by the Department. Petitioner has spent a great deal of money to lease the property on which the sign is to be located and has hired attorneys to pursue this matter. All of these expenditures were based upon Petitioner's reliance on the representations of Ms. Kinchen.

Further, in at least one other instance, at

I-95 and SR 60 on the west side exit, the Department has allowed the placement of an outdoor advertising sign within 500 feet of a restricted intersection in an unincorporated portion of Indian River County.

Finally, the Department, under Vana Kinchen's signature, issued a permit for a sign to be located on the identical site at issue in this proceeding to Adcon Outdoor Advertising, Inc., Petitioner's former company.

Here, "Petitioner's theories for recovery are twofold:

1. that the Department allowed a nonconforming sign to be erected at State Road 60 and I-95; and 2) that Petitioner relied to its detriment on representations made by an agent or employee of the Department concerning the proposed location of its outdoor advertising sign, and, therefore, the Department should be estopped from asserting that Petitioner's sign is nonconforming." (Petitioner's Proposed Recommended Order, at page 8.)

   The Department's position, as stated in the prehearing stipulation, is as follows:

   POZ's outdoor advertising sign is proposed to be located within 500 feet of a restricted

   interchange or intersection at grade pursuant (sic) [contrary] to Rule 14-10.006(1)(b)5, Florida Administrative Code. The Department has not granted outdoor advertising permits in violation of this Rule.

   The Department through its employee Vana Kinchen, did not show Petitioner how and where to measure for the placement of an outdoor advertising sign at this site which is the subject of this proceeding as alleged. Therefore, there were no representations made by the Department upon which the Petitioner can show reliance. Further, the Department has never approved a permit for the identical outdoor advertising site which is the subject of this proceeding.

   Lastly, the Department has not approved the location of an outdoor advertising sign located within 500 feet of the interchange of SR 60 and I-95. It has come to the attention of the Department that the sign currently located at the interchange of SR 60 and I-95 was built without the knowledge and consent of the Department. As a result, the Department has issued a Notice of Violation for the sign because it was erected illegally.

   At hearing, Petitioner POZ, presented the testimony of Richard Pozniak, Barbara Pozniak, and Vana Kinchen, and its Exhibits 1A-1J, 2, and 3 were received into evidence. Respondent called Harry Ketcham as a witness, and its Exhibits 1 through 9 were received into evidence.

   The transcript of the hearing was filed November 17, 1997, and the parties were accorded ten days from that date to file proposed recommended orders. The parties elected to file such proposals, and they have been duly considered in the preparation of this order.

   
   

   FINDINGS OF FACT

   
   

   Preliminary matters

   
   

   1. Petitioner POZ Outdoor Advertising, Inc. (POZ), is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. The principals of POZ are Richard Pozniak and his wife, Barbara.

   2. Respondent, Department of Transportation (Department) is a state agency charged with, inter alia, the responsibility to regulate outdoor advertising, under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code.

   3. On February 17, 1997, POZ applied with the Department for permits to erect a monopole sign which would support a two- sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road, St. Lucie County, Florida.

   4. The Department reviewed the applications, and on February 20, 1997, gave notice to POZ that the applications were denied because the "[s]ite is within 500 feet of a restricted interchange or intersection at grade (S. #14-10.006(1)(b)5, FAC)." POZ filed a timely request for a formal hearing to challenge the Department's decision, and these proceedings duly followed.

      Matters at issue

   5. POZ did not contend, and indeed offered no proof at hearing to demonstrate, that the proposed site was not, as found by the Department, within 500 feet of a restricted interchange or intersection at grade, as proscribed by Rule 14-10.006(1)(b)5, Florida Administrative Code.2 Rather, as noted in the preliminary statement, POZ contends the Department should be precluded from applying the Rule's spacing provisions as a basis for denial of the requested permits based on a theory of estoppel or a theory of inconsistent application of the Rule's spacing requirements.

      POZ's estoppel theory

      
      

   6. To accept POZ's estoppel theory, one must accept, as offered, Mr. Pozniak's version of events which he avers transpired in 1990, when he conducted his outdoor advertising business through AdCon Outdoor Advertising, Inc. (AdCon).3 According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then a sign inspector with the Department, to establish the proper location of a billboard that AdCon proposed to permit. Again, according to Mr. Pozniak, Ms. Kinchen helped him measure the site, and identified the same location at issue in this proceeding (2244 feet north of the intersection of I-95 and Indrio Road) as an appropriate placement for a billboard.

   7. Following Ms. Kinchen's advice as to location,

      
      

      Mr. Pozniak avers that he applied for permits on behalf of AdCon to erect a monopole sign which would support a two-sided

      billboard to be located at the exact same site that is at issue in this proceeding. Those applications, according to Mr.

      Pozniak, were approved and Department tags issued; however, the sign was not erected within 270 days after the permit issued, as required by Section 479.05(3)(5)(b), Florida Statutes, and the permits became void.

   8. Having carefully considered the proof in this case, it must be concluded that Mr. Pozniak's version of the events surrounding AdCon's permitting activities in 1990 is less than credible. Rather, the persuasive proof demonstrates that AdCon's application for permits to erect a billboard at the site at issue in this proceeding were denied and it is most unlikely that Ms. Kinchen ever advised Mr. Pozniak that such site was a proper location for a billboard.

   9. Regarding AdCon's permitting activities in 1990, the proof demonstrates that on April 6, 1990, AdCon filed applications (inexplicably dated May 6, 1990) with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 3050 feet north of the intersection of I-95 and Indrio Road. Consistent with the requirement of Section 479.04(3)(b), Florida Statutes, the applications included a separate statement from the local government that the proposed signs complied with local government requirements. Those applications were approved and, on May 3, 1990, the Department's tag numbers BB-457-35 (for the north

      facing sign) and BB-458-35 (for the south facing sign) were issued.

   10. Subsequently, on November 9, 1990, AdCo filed applications dated November 7, 1990, with the Department to erect a monopole sign which would support a two-sided billboard to be located west of I-95, and 2,244 feet north of the intersection of I-95 and Indrio Road (the location at issue in this case). Those applications were rejected by the Department on November 15, 1990, because they violated the spacing requirements of Section 479.07(9)(a)1, Florida Statutes, which prohibits the issuance of a permit unless the sign is located at least 1,500 feet from any other sign on the same side of an interstate highway. Notably, as the Department observed at that time, those applications conflicted with the previously approved applications of AdCon for the site located at 3,050 feet north of the intersection of I-95 and Indrio Road, and the permittee still had until January 28, 1991, to erect those signs. The applications were also rejected by the Department because they failed to include a statement from local government as required by Section 479.04(3)(b), Florida Statutes, that the proposed signs complied with local government requirements. Rather, what AdCon submitted was a copy of the local government approval it had secured for the location permitted by the Department on May 3, 1990. That documentation did not, as AdCon knew or should have known, meet the requirements for the new location.

   11. Clearly, the Department did not previously permit the site at issue in this case, and it is most unlikely that

       Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the suitability of the site. In so concluding, Mr. Pozniak's testimony, as well as Petitioner's Exhibit 3 (what purports to be copies of applications, dated November 7, 1990, by AdCon for the site at issue in this proceeding, and purportedly approved by the Department) have been carefully considered. However, when compared with the other proof of record it must be concluded that Petitioner's Exhibit 3 is a fabrication,4 and that Mr. Pozniak's testimony on the subject is not credible or worthy of belief.

       POZ's theory of inconsistency

       
       

   12. Mr. Pozniak offered testimony at hearing concerning two outdoor advertising signs at the intersection of I-95 and State Road 60 which he opined did not conform with the Department's spacing requirements and, therefore, represent inconsistent application of the District's rule. The persuasive proof is, however, to the contrary.

   13. The first sign, located within 500 feet of the interchange, was in existence when the Department's "ramp rule" regarding spacing requirements became effective and, accordingly, its presence was grandfathered. However, at some time following the enactment of the ramp rule, the owner replaced the sign. At that time, the sign became nonconforming and the Department, as soon as it became aware of the nonconformity, commenced an action

       to secure the sign's removal.

       
       

   14. The other sign alluded to by Mr. Pozniak, and identified in Petitioner's Composite Exhibit 1, is owned by Division Street, Inc., and, contrary to Mr. Pozniak's testimony, that sign complies with the Department's spacing requirements and was properly permitted.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569 and 120.57(1), Florida Statutes (Supp. 1996).

   16. As the applicant, the burden rests on the Petitioner to demonstrate, by a preponderance of the evidence, entitlement to the requested permits. Department of Transportation v. J.W.C., Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The applicant, however, need address only those issues raised in the Department's notice of intent to deny the subject applications. Department of Transportation v. J.W.C., Co., Inc., supra, and Woodholly Associates v. Department of Natural Resources, 451 So. 2d 1002 (Fla. 1st DCA 1984).

   17. Here, the Department proposed to deny Petitioner's applications based on its conclusion that the proposed sign location violated the minimum spacing requirements established by Rule 14-10.006(1)(b), Florida Administrative Code. Pertinent to

       this case, the Rule provides:

       
       

       5. 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.

   18. As heretofore noted, Petitioner did not contest the Department's conclusion,5 but contended that the Department should be estopped from asserting the proposed location was nonconforming, as required by the rule, because of certain representations made by a Department employee regarding the location and, moreover, that the Department should be precluded from applying the rule because, by allowing a nonconforming sign to be erected at State Road 60 and I-95, the Department has not consistently applied the spacing requirements established by the rule.

   19. The elements necessary to establish estoppel against the state are generally recognized as: "(1) a representation by an agent of the state as to a material fact that is contrary to a later asserted position; (2) reasonable reliance on the representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon." Harrish v. Department of Administration, 577 So. 2d 1363, 1366 (Fla. 1st DCA 1991). Accord, Dolphin Outdoor Advertising v. Department of Transportation, 582 So. 2d 709 (Fla.

       1st DCA 1991), and Tri-State Systems, Inc. v. Department of Transportation, 500 So. 2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1041 (Fla. 1987).

   20. Here, as noted in the findings of fact, and contrary to the position taken by Petitioner, the credible proof demonstrated that the Department did not previously permit a sign at the proposed site and no agent of the Department was persuasively shown to have represented to Petitioner that the proposed site complied with existent spacing requirements. Consequently, there being no representation that the site complied with the Department's spacing requirements, Petitioner's estoppel argument must fail.

   21. Finally, Petitioner's argument that the Department should be precluded (based on some unarticulated legal theory) from denying the requested permit because the Department failed to consistently apply its spacing requirements, must also fail. First, as heretofore noted, and contrary to the position taken by Petitioner, the credible proof demonstrated that the Department did not inconsistently apply the spacing requirements established by rule. Moreover, even if the proof demonstrated that the Department had approved a project that failed to meet the spacing requirements established by rule, such error would not justify approval of Petitioner's application. See State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985), ("[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of

law."); Buffa v. Singletary, 652 So. 2d 885, 886 (Fla. 1st DCA 1995), (An agency must comply with its own rules."); Decarion v. Martinez, 537 So. 2d 1083, 1084 (Fla. 1st DCA 1989), ("Until amended or abrogated, an agency must honor its rules.") Indeed, the Department should not approve a project that does not meet the criteria for approval simply because, in derogation of its responsibility, it erroneously approved projects in the past. To the contrary, the Department should studiously avoid repeating any such mistakes.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered denying the subject applications for outdoor advertising sign permits.

DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997.

ENDNOTES

1/ Two permit applications were required because the proposed sign was two-sided, with one side facing north and one side facing south.

2/ The proof which addressed the issue was offered by the Department or was contained in the parties' prehearing stipulation. That proof was consistent with the Department's initial conclusion.

3/ Mr. Pozniak and his wife, Barbara, owned AdCon, which they operated from 1987 until 1996. Thereafter, apparently, they did business through POZ.

4/ Petitioner's Exhibit 3 is a crudely altered copy of the applications, dated May 6, 1990, that were submitted and approved for the site located 3050 feet north of the intersection of I-95 and Indrio Road. On Petitioner's Exhibit 3, the date of the original application (5/6/90) has been changed to read (11/7/90); the distance from the nearest intersection has been changed from 3050 feet to 2244 feet; the distance from the nearest permitted sign has been changed from 1000 feet to 1500 feet; and the date of sign erection has been changed from 4/15/90 to 12/15/90. The fee tendered was also altered to reflect the fee that would have been due in November, as opposed to April when the application dated May 6, 1990, was filed. Based on the proof, it must be concluded, more likely than not, that Petitioner's Exhibit 3 is a fraudulent document; and that Mr. Pozniak's testimony is, at best, lacking in candor or credibility.

5/ Indeed, Petitioner offered no proof that the proposed location conformed with the spacing requirements of Rule 14-10.006(1)(b)5, Florida Administrative Code, and the proof that was offered, supported the Department's initial decision that the proposed location was nonconforming.

COPIES FURNISHED:

Robert S. Cohen, Esquire Martha J. Edenfield, Esquire Pennington, Moore, Wilkinson

& Dunbar, P.A.

Post Office Box 10095 Tallahassee, Florida 32302

Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Department of Transportation Attn: Diedre Grubbs

Haydon Burns Building Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

Mail Station 58

562 Suwannee Street Tallahassee, Florida 32399-0458

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: 97-001704

Orders for Case No: 97-001704