STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2425T

) NATIONAL ADVERTISING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on November 6, 1981, and July 29, 1982, in Bartow and Fort Myers, Florida, respectively. 1/ The parties were represented by counsel:

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Gerald S. Livingston, Esquire

Livingston & Laubach

Hartford Building, Suite 1150

200 East Robinson Street Orlando, Florida 32801

The issue for determination at the final hearing was whether the Respondent National Advertising Company should be required to remove a double-faced outdoor advertising structure located on U.S. 41, in Lee County, Florida, for zoning violations as alleged in the notice of violation dated November 13, 1979.

At the hearing held November 6, 1981, in Bartow, Florida, David L. Nicholson testified for the Petitioner Department of Transportation, and Petitioner's Exhibits 1-8 were offered and received into evidence. At the subsequent hearing on July 29, 1982, in Fort Myers, Florida, Kristina Kulpa and Pamela E. Houck testified for the Department, and Richard M. Salomone testified for the Respondent National Advertising Company. Petitioner's Exhibits 7-11 and Respondent's Exhibit 1 were offered and admitted into evidence. Pursuant to an agreement of the parties, Petitioner's Exhibits 5 and 8, previously admitted, were removed from evidence. Official recognition was taken of Chapter 14-10, Florida Administrative Code.

Proposed Recommended Orders have been submitted by the parties containing findings of fact. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as being either not

supported by the weight of admissible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. By applications dated July 30, 1979, the Respondent National Advertising Company applied for eight permits to construct four double-faced outdoor advertising signs on U.S 41 and Pine Island Road, in Lee County, Florida.

   
   

2. The applications in question stated that the signs were to be located in an unincorporated area of Lee County zoned commercial or industrial. This was consistent with the official zoning maps of Lee County, which reflected that the property upon which the signs were to be located was zoned commercial.

   
   

3. The applications were approved by the Department on July 31, 1979, and one structure was erected. This structure bears permit numbers 11293-10 and 11294-10.

   
   

4. Subsequently, it was determined that the zoning on the subject property was agricultural rather than commercial as stated on the permit applications. This problem was caused by a transposition error on the Lee County zoning maps which mistakenly classified the subject property as commercial.

   
   

5. On November 1, 1979, notices of violation of Chapter 14-10.05, Florida Administrative Code were issued against the permits which alleged that the structures were in violation of law due to inappropriate zoning.

   
   

6. The inspector who approved the Respondent's applications relied upon the representation made by the Respondent that the zoning on the property was commercial and did not independently verify this information.

   
   

7. In reliance on the Lee County zoning maps, a representative of the Respondent entered into a lease agreement with the owner of the property on which the signs were to be located, secured Department of Transportation permits and, subsequently, county building permits.

   
   

8. Following the erection of the first sign, the Department was informed by another sign company that the zoning on the property was improper. The Department "red-tagged" the completed sign and the remaining permitted structures, thus halting further construction.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

10. The parties in this case agree that the structure in question does not conform to the requirements of Chapter 14-10, Florida Administrative Code, in that the zoning on the site does not allow the structures permitted. The Respondent contends, however, that the erected sign should be allowed to remain in place since the inspector hired by the Department relied on the representation made in the permit application filed by the Respondent rather than comply with Chapter 14-10.04(1)(b), Florida Administrative Code, which provides in pertinent part that a

    ... sign site must be inspected by an outdoor advertising inspector to assure that the sign(s) will not be in violation of the pro- visions of Chapter 479, Florida Statutes, Title 23, Section 131, U.S. Code and local governmental regulations. If all these re- quirements are met and the measurements are correct, the inspector stamps the application "approved"...

    
    

11. The Respondent in good faith relied upon the zoning maps of Lee County when submitting its application. The Department's inspector, routinely relying on the information contained in the application, approved the same. There is no evidence to support the contention that had the inspector actually inspected the site, the mistake which was created by an error of local government, would have been corrected. To correct this mistake, the Department's inspector would have had to take steps beyond merely inspecting she site. Moreover, it appears that there was considerable confusion regarding the zoning on this site and such confusion continued even after the notices of violation were issued. Even assuming, however, that the Respondent relied on the erroneous local zoning maps to its detriment, the state cannot be estopped from enforcing state laws and regulations based on a third party's good faith, albeit erroneous, reliance on mistaken information provided by local officials. See Volusia County v. Daytona Beach Racing and Recreational Facilities District, 341 So.2d 498 (Fla. 1976); Lykes Brothers, Inc. v. City of Plant City, 354 So.2d 878 (Fla. 1978), Special Disability Trust Fund v. Aetna Casualty, 397 So.2d 381 (Fla. 1st DCA 1981) and First National Bank of Birmingham v. Department of Revenue, 364 So.2d 38 (Fla. 1st DCA 1978).

RECOMMENDATION

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

That a Final Order be entered by the Petitioner Florida Department of Transportation revoking permit numbers 11293-10, 11294-10, 11296-10, 11295-10, 11299-10, 11297-10 and 11298-10, issued to the Respondent National Advertising Company to construct four double-faced outdoor advertising signs on U.S. 41 in Lee County, Florida.

DONE and ORDERED this 30th day of June, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30 day of June, 1983.

ENDNOTE

1/ This case was continued pursuant to a Joint Motion to Stay in order to allow the Respondent time to pursue a rezoning of the subject property.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Gerald S. Livingston, Esquire LIVINGSTON & LAUBACH

Hartford Building, Ste. 1150

200 East Robinson Street Orlando, Florida 32801

John Beck, Esquire General Counsel

Department of Transportation Haydon Burns Building, Room 562 Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 79-002425

Orders for Case No: 79-002425