STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3736T

)

CHIPLEY MOTEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on March 12, 1985, in Chipley, Florida. The transcript was filed with this Division on April 15, 1985, and the parties thereafter submitted proposed findings of fact and conclusions of law. These have been considered and, where accepted, have been incorporated herein. Except where these proposed findings and conclusions were found to be subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each either directly or indirectly.

APPEARANCES

FOR PETITIONER: Maxine F. Ferguson, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

FOR RESPONDENT: James J. Richardson, Esquire

Post Office Box 12669 Tallahassee, Florida 32317

By notice dated October 3, 1984, the Department advised the Respondent, Chipley Motel, that its sign located on the south side of I-10, 1.4 miles west of SR 77 in Washington County, bearing permit number 8997-6, was in violation of Section 479.11, Florida Statutes, and Section 14-10.05(1) Florida Administrative Code. The Department seeks to revoke this permit and remove the Respondent's sign on the grounds that there has never been any zoning in effect at the location where the sign was erected which would qualify this location as a permittable site. Thus, the issue is whether the Respondent's permit should be revoked because the sign location is not within a zoned or unzoned commercial or industrial area.

FINDINGS OF FACT

1. On February 28, 1979, the manager of Chipley Hotel, Mrs. Linda Cain, made application for a permit to erect an outdoor advertising sign on the south side of I-10, 1.4 miles west of S.R. 77 in Washington County, Florida.

2. Employees of the Department in Chipley assisted Mrs. Cain in the completion of the permit application and advised her that the property on which the sign was to be erected was zoned for commercial or industrial use. She had no independent knowledge of the zoning or lack of zoning on this property.

   
   

3. Thereafter, Department personnel inspected the site, final approval of the permit application was given by the Department of Transportation, and a permit was issued to Chipley Motel authorizing the erection of an outdoor advertising sign at the requested location on I-10.

   
   

4. In reliance on the issuance of this permit, Chipley Motel erected a sign at the permitted location.

   
   

5. Each year Chipley Motel has paid to the Department the annual permit fees for the renewal of this permit. These permit fees have been paid for the years 1979 through 1985, and they have been accepted by the Department.

   
   

6. Back in 1979, when employees of the Department at the Chipley District Office made their determination that the property where the sign was to be located was zoned commercial or industrial, they inquired of county officials and relied on the information supplied by them.

   
   

7. The property where the subject sign has been erected is not zoned either commercial or industrial, and there has never been any actual zoning for this property.

   
   

8. There exists no commercial or industrial activity within 800 feet of the subject sign's location which would qualify the site as an unzoned commercial or industrial area.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

10. Section 479.11, Florida Statutes (1979) , provides in part: No advertisement, advertising sign or advertis-

    ing structure shall be constructed, erected, used, operated or maintained:

    1. within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111. . . .

       
       

       1. Section 479.111, Florida Statutes (1979), provides in part:

          
          

          Only the following signs shall be permitted within controlled portions 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.

1. Section 479.02, Florida Statutes (1979) provides in part:

   
   

   1. It shall be the function and duty of the department, subject to current federal regula- tions, to:

      1. Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the

         Governor in accordance with title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code.

         (c) Determine unzoned commercial and industrial areas; . . .

         
         

2. Section 14-10.09(2), Florida Administrative Code, adopts the agreement between the United States and the State of Florida. Section I, 1., B., C. and J., thereof provides:

   
   

   1. Unzoned commercial or industrial area means an area within six hundred sixty (660) feet of the nearest edge of the right-of-way of the Interstate, Federal-Aid Primary System, or State Highway Systems not zoned by State or local law, regulation or ordinance in which there is located one (1) or more industrial

      or commercial activities generally recognized as commercial or industrial by zoning authori-

      ties in this state. . . . The unzoned commercial or industrial area shall only include those lands on the same side of the highway which

      are within eight hundred (800) feet of such commercial or industrial activity. . . .

   2. Commercial or industrial zone means an area within six hundred sixty (660) feet of the

   nearest edge of the right-of-way of the Interstate, Federal-Aid Primary System, or State Highway Systems zoned commercial or industrial under authority of State law.

   J. Maintain means to allow to exist.

   
   

3. Section 14-10.02, Florida Administrative Code, provides in part:

   
   

   . . . (T)he department shall effectively con- trol or cause to be controlled, the erection and maintenance of outdoor advertising, advertising signs and advertising structures

   along all the Interstate and Federal-Aid Primary Highway Systems. . . .

   
   

4. Section 479.08, Florida Statutes (1984), provides in part:

   
   

   The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines

   that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter. . . .

   
   

5. Pursuant to these statutes and rules the Department of Transportation has a duty not only to control the erection of outdoor advertising signs along the Interstate and Federal-Aid Primary highways, but also to control the maintenance of these signs.

   
   

6. Nevertheless, in its zeal to perform this duty to control the continued existence (maintenance) of outdoor advertising signs, the Department may not vacillate in its application of these statutes and rules to members of the general public to their detriment. In 1979 the operator of an individual business sought the assistance of the Department through its authorized personnel to place a sign advertising this business. The Department personnel assisted her to complete the permit application. They made an inquiry of county employees to determine the zoning at the proposed sign site. They inspected the location, they approved the permit application, and the Department issued the requested permit based on the information supplied to the Respondent by Department personnel. This permit was issued under the aegis of the Department for the erection of a lawful sign.

   
   

7. Six years later, after the permitted sign had been erected, and the Department had accepted permit renewal fees annually, the Department claims that the individual who relied completely on Department personnel for all the information supplied on her permit application, was charged with knowledge of the zoning laws of Washington County. This duty to know, however, extends also to the Department and its authorized personnel who undertook to render a service, but rendered it erroneously, and now seek to shift the error from themselves to the Respondent.

   
   

8. The site where the Respondent's sign stands is not zoned, nor is this site in an unzoned commercial or industrial area. This site is agricultural or rural in nature, and it was not lawful to issue a permit to erect an outdoor advertising sign there. Yet the error was the Department's not the Respondent's. There is not any evidence to support a finding that the Respondent supplied the information contained in the permit application, or that the information that was supplied by Department personnel was knowingly false. The permittee's sign is in violation of the provisions of Chapter 479, Florida Statutes, in that it stands in a location that is not permittable, but the permittee has violated none of the provisions of this statute. Thus, the statutory prerequisites in Section 479.08, Florida Statutes, for revocation of a permit are not present.

   
   

9. The Department cites several cases in support of its position that it is not estopped from revoking the subject permit, such as City of Miami Beach vs. Meiselman, 216 So.2d 774 (Fla. 3rd DCA 1968), and Dade County vs. Bengis Associates, 257 So.2d 291 (Fla. 3rd DCA 1972). However, these cases were also cited to the Third District Court of Appeal in Fraga, M.D. vs. Department of Health and Rehabilitative Services, 464 So.2d 144 (Fla. 3rd DCA 1984), but were rejected by the Court's imposition of estoppel against the state. Chief Judge Schwartz found the factual situation in that case to "thoroughly offend his sense of justice" and stated further: "the Department's classic example of bureaucratic ineptitude and indifference, with its supremely adverse consequent effect upon an innocent citizen" should not permit it to escape censure. 1/

10. The elements of estoppel have been lately recited by Kuge vs. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984), to be (1) a representation of a material fact that is contrary to a later-asserted position, (2) reliance on this representation, and (3) a change of position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. This doctrine is applicable to the State of Florida. Kuge, M.D., supra; Salz vs. Department of Administration, Division of Retirement, 432 So.2d 1376 (Fla. 3rd DCA 1983). The elements are all present in this case, in that the Department's personnel represented the site of the proposed sign to be permittable; this is contrary to the position asserted here; the Respondent relied on this representation; and changed position (erected a sign) to its detriment.

    
    

11. There is sufficient evidence to support a finding that the Department is estopped to now remove the Respondent's sign.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's Notice of Violation issued on October 3,

1984, be Dismissed, and that the Respondent's sign on the south side of I-10,

1.4 miles west of SR 77, facing west, in Washington County, Florida be allowed to remain in place as a nonconforming sign.

THIS RECOMMENDED ORDER entered this 26th day of April, 1985 in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

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 26th day of April, 1985.

ENDNOTE

1/ If the permit holder is a professional outdoor advertising company this result might not obtain.

COPIES FURNISHED:

Maxine F. Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301

James J. Richardson, Esquire

P.O. Box 12669 Tallahassee, Florida 32317

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003736

Orders for Case No: 84-003736