STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1063T

) PETERSON OUTDOOR ADVERTISING ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 12 July 1978 at Bartow, Florida.

APPEARANCES

For Petitioner: John J. Rimes, III, Esquire

Haydon Burns Building, Room 562 605 Suwannee Street

Tallahassee, Florida 32304

For Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802

By Notices of Alleged Violation dated 3 April 1978 and 1 May 1978 Department of Transportation (DOT) Petitioner, seeks removal of various signs owned by Peterson Outdoor Advertising Corporation, Respondent. As grounds therefor it is alleged that the signs are without permits and/or located in areas where zoning does not allow the signs to be erected. At the hearing Petitioner withdrew its Violation Notices against four of the five signs listed on Exhibit 2 as the discrepancies have been corrected by Respondent.

Thereafter four witnesses were called by Petitioner, one witness was called by Respondent and 15 exhibits were admitted into evidence.

FINDINGS OF FACT

1. The remaining alleged non-conforming sign on Exhibit 2 is located within the city limits of Lakeland, Florida at Lake Parker Drive and Main Street. Petitioner acknowledged that if the sign was erected prior to 1972 and meets the requirements of the city of Lake land it is permittable.

   
   

2. This sign was purchased by Respondent some two years ago from Outdoor Media who had obtained a permit for the sign on 3 January 1972. The sign was

   erected shortly thereafter. Accordingly the sign is permittable in its present location.

   
   

3. The two signs on Exhibit 1 present a different situation. These signs were purchased by Respondent from Lawrence Company approximately one year ago and the signs were up when Lawrence was purchased. These two signs are located on US 92, 9.50 and 9.60 miles west of US 17. US 92 is a federal-aid primary highway. The zoning in the area is Rural Conservation, however, the owner of the property has applied for and obtained concept approval for a Planned Urban Development (PUD) project.

   
   

4. Applications submitted by Lawrence to DOT for a permit to erect these signs (Exhibits 3 and 4) showed the property on which the signs were to be erected to be zoned Commercial or Industrial. A telephone call to the county zoning section by the DOT approving officer confirmed that the zoning was Commercial and a permit was issued. Actually the owner of the property had submitted a PUD application which received concept approval for a country store, boat rental and sales, and other businesses to cater to the users of Saddle Creek Park (Exhibit 7). Extensions of this concept approval have been granted by Polk County through January 24, 1979.

   
   

5. Concept approval does not change the zoning or authorize any construction on the property inconsistent with the original zoning. Application for a zoning change to that requested in the application for which concept approval was granted is necessary before the County can or will change the zoning. Such application will be treated as all other applications for zoning changes and the fact that concept approval has been granted does not assure the application for zoning change will be approved.

   
   

6. Accordingly the signs shown on Exhibit 1 to be in violation are erected on property presently zoned Rural Conservation and the property was so zoned when the signs were erected.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The only issue remaining is the status of the two signs noticed to be in violation on Exhibit 1.

   
   

9. Section 479.07 Florida Statutes provides no person shall erect or operate a sign along any federal-aid primary highway without first obtaining a permit from the Department of Transportation.

   
   

10. Limitations on granting such permits are contained in Section 479.111 Florida Statutes which provides in pertinent part:

    
    

    Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:

    (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

    
    

11. Since these two signs are located in an area not zoned Commercial and Industrial they are in violation of the above-quoted statute.

12. The fact that Petitioner originally issued permits for these signs after receiving erroneous information from both the applicant and the County does not estop the DOT from refusing to issue permits upon discovering the true state of the zoning. Respondent cannot rely upon the false information supplied by its predecessor in title to claim equitable estoppel against Petitioner.

    
    

13. From the foregoing it is concluded that the two signs owned by Respondent on US 92, 9.50 and 9.60 miles west of US 17 are in violation of Section 479.111 Florida Statutes and cannot be permitted. It is further concluded that if the owner of the property on which these signs are located applies for and receives the zoning change for which he has received concept approval the signs will then be on property zoned so that authorization for the signs may be granted.

    
    

14. At the request of the parties the submission of this Recommended Order was delayed for a period of six months to allow Respondent time to obtain the necessary zoning changes needed to make the signs here involved legal. The time has now expired and nothing further has been received by the undersigned Hearing Officer to show the signs are now permittable. It is therefore

RECOMMENDED that Peterson Outdoor Advertising Corporation remove the signs located on US 92, 9.5 miles and 9.6 miles west of US 17.

Entered this 26th day of January, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

John J. Rimes, III, Esquire Department of Transportation Haydon Burns Building, Room 562 605 Suwannee Street

Tallahassee, Florida 32304

Gerald Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802

Peterson Outdoor Advertising Corporation Lakeland Division

Post Office Box 935 Lakeland, Florida 33801

Docket for Case No: 78-001063

Orders for Case No: 78-001063