STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, ) CASE NOS. 84-3740T

) 84-3741T

vs. ) 84-3742T

) 84-3743T

FOOD 'N' FUN, INC., )

)

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 these consolidated cases on April 14, 1985, in Marianna, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly.

APPEARANCES

For Petitioner: Maxine F. Ferguson, Esquire

Charles G. Gardner, Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Charles M. Wynn, Esquire

Post Office Box 793 Marianna, Florida 32446

By notices dated October 3, 1984, the Department advised the Respondent that two of its signs located in Jackson County on the south side of I-10, one approximately 1.55 miles and the other approximately 1.7 miles east of SR 69, bearing permit numbers 11269-10, 11267-10, 11268-10, 11231-10, 11229-10 and 11230-10, were in violation of Section 479.11, Florida Statutes, and Section 14- 10.05(1), Florida Administrative Code. The Department seeks to revoke these permits and remove the Respondent's signs on the grounds that there is an absence of visible commercial activity within the required distance of these signs to qualify the sites as unzoned commercial or industrial areas pursuant to Sections 479.11 and 479.111, Florida Statutes and Section 14 10.05, Florida Administrative Code. Thus, the issue is whether the Respondent's permits should be revoked because the sign locations are not within unzoned commercial or industrial areas.

FINDINGS OF FACT

1. On or about July 6, 1979, the Department issued permits numbered 11229- 10, 11230-10 and 11231-10 to the Respondent, Food 'N' Fun, Inc., authorizing the erection of a stacked back- to back sign on the south side of I-10, 1.7 miles

   east of SR 69, in Jackson County, Florida. Permits numbered 11267-10, 11268-10 and 11269-10 were issued on or around July 24, 1979, authorizing the erection of a stacked back-to-back sign on the south side of I 10, 1.55 miles east of SR 69, in Jackson County, Florida. Prior to the issuance of these permits the sites were field inspected and approved by Department personnel.

   
   

2. Subsequently, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the signs. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject sign permits were being revoked because the signs were not erected in a zoned or unzoned commercial area.

   
   

3. The Respondent's representative who submitted the permit applications designated on these applications that the sign locations were in an unzoned area within 800 feet of a business. This representative also certified on the applications that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

   
   

4. Prior to conducting his field inspection, the Department's inspector had been informed by the applicant that a commercial activity (welding) was being conducted in a metal building within 800 feet of each of the sign locations. When he made his inspection he found a house on the south side of I- 10, a tin building in the rear, a field, and 2 or 3 other houses on the access road. When he inquired at the house, he was told that a business was located there, and he was shown either a tax certificate or tax number. At the time of the inspection no business activity was seen, nor has any been seen by Department personnel at this location at any subsequent time. Numerous unsuccessful attempts were made to again contact the owner of the business in an effort to establish whether or not any business actually existed at this location.

   
   

5. The area where the subject signs are located is agricultural and rural in nature. Although the tin building in which the welding business is supposed to be located is visible from the interstate, the Respondent agrees that as viewed from the main-traveled way of I-10 there is nothing to indicate that any commercial activity is being conducted at this location.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 479.11, Florida Statutes, (1979), provides in part:

   
   

   No advertisement, advertising sign or advertising 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 . . . .

8. 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.

   
   

9. Section 479.01, Florida Statutes, (1979), sets, forth the following definitions:

   
   

   (10) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate, federal-aid primary system, or state

   highway system not zoned by state or local law regulation or ordinance, in which there is located one or more industrial or commercial activities generally recognized as commercial or industrial by zoning authorities in this state, except that the following activities may not be so recognized:

   (d) Activities not visible from the main traveled way.

   (15) "Maintain" means to allow to exist.

   
   

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

    
    

    . . . (T)he department shall effectively control 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. . . .

    
    

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

    
    

    1. It shall be the function and duty of the department, subject to current federal regulations, 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; . . .

          
          

12. Section 479.08, (1984), Florida Statutes, 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. . . .

    
    

13. 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 continued maintenance of these signs. The statutes further authorize the Department to determine what are unzoned commercial and industrial areas. Regardless of whether the subject applications were approved by the inspector and other Department officials, and the permits subsequently issued by the Department, the statutory prerequisite for the erection of lawful signs was not present when the applications were submitted. The approval of the inspector was based on what he expected to find at the site from information contained in the Respondent's applications and from what he had been told. But the proposed site was not in a commercial or industrial area within 800 feet of a business that was visible from the interstate when the Respondent certified on its applications that the signs to be erected would meet all the requirements of Chapter 479, Florida Statutes. Activities not visible from the main-traveled way are excluded by the statutory definitions from qualifying a location as an unzoned commercial or industrial area. Thus, the Respondent's permits may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

14. The Respondent contends that the Department is estopped from revoking its permits, and the case law cited has been considered. The principle of estoppel, however, is not applicable to the factual situation present in this proceeding. The first essential element of estoppel is a representation by the party to be charged of a material fact that is contrary to a later-asserted position: Kuge v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984), Salz v. Department of Administration, Division of Retirement, 432 So.2d 1376 (Fla. 3rd DCA 1983). In this case, the Department made no such representation, thus foreclosing the applicability of the doctrine of estoppel.

    
    

15. The Respondent further contends that the proof presented by the Department fails to meet the standards established for revocation proceedings which are penal in nature. Henderson Signs v. Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). Although a higher standard of proof is required in proceedings which are penal in nature than in those which are not 1/ , the evidence in this case upon which the finding was made that the area where the signs were erected was not unzoned commercial, within 800 feet of a visible business, was sufficient to meet the higher standards. The Respondent's evidence corroborated that presented by the Department that there was nothing about the site where welding was supposed to be taking place to indicate to traffic on I-10 that a welding business was located there.

RECOMMENDATION

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

RECOMMENDED that permit numbers 11269-10, 11267-10, 11268 10, 11231-10,

11229-10, and 11230-10 held by the Respondent, Food 'N' Fun, Inc., authorizing two stacked, back-to-back signs located on the south side of I-10, 1.55 miles and 1.7 miles east of SR 69 in Jackson County, Florida, be revoked, and the subject signs removed.

THIS RECOMMENDED ORDER entered this 9th day of August, 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 9th day of August, 1985.

ENDNOTE

1/ Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

COPIES FURNISHED:

Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Charles M. Wynn, Esquire

P. O. Box 793

Marianna, Florida 32446

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003740

Orders for Case No: 84-003740