STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3746T

) 84-3747T

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 Building, 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 its sign located in Jackson County on the south side of I-10, approximately

1 mile and 600 feet west of U.S. 231, bearing permit numbers 10279-10, 10743-10, 10744-10 and 10745-10, was 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 sign on the grounds that there is an absence of visible commercial activity within the required distance of this sign to qualify the site as an unzoned commercial or industrial area 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 location is not within an unzoned commercial or industrial area.

FINDINGS OF FACT

1. On or about September 5, 1978, the Department issued permit number 10279-10 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 mile and 600 feet west of

   U.S. 231 in Jackson County, Florida. Permit numbers 10743-10, 10744-10 and

   10745-10 were issued on or about December 21, 1978, for the other three faces of this sign. Prior to the issuance of these permits the site was field inspected and approved by Department personnel.

   
   

2. Subsequently, the site was 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 sign. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because the sign was 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 location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

   
   

4. There is a business known as Dilmore Meats located within 660 feet of I-10 and within 800 feet of the site where the Respondent's sign stands.

   Dilmore Meats is a sausage company doing business in a partially block building, with some stalls around it for storing livestock. However, the area is rural and agricultural in nature, and there is nothing visible from I-10 to indicate to traffic that any business or commercial activity is located there. No other businesses or commercial activities exist or are being conducted in this locality. Although the building where the sausage business is located can be seen from the interstate, there is nothing to distinguish this building from other farm buildings and, 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

   
   

5. 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 outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

6. Section 479.11, Florida Statutes, (1977), provides in part: No advertisement, advertising sign or adver-

   tising 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 inter- state system or the federal-aid primary system except as provided in s. 479.111. . . .

      
      

7. Section 479.111, Florida Statutes (1977), 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.

8. Section 479.01, Florida Statutes (1977), 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 regula- tion or ordinance, in which there is located one or more industrial or commercial activities generally recognized as commercial or indus- trial by zoning authorities in this state, ex- cept 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.

   
   

9. 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, adver- tising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .

   
   

10. Section 479.02, Florida Statutes (1977), 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; . . .

          
          

11. 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. . . .

    
    

12. 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. The

    Department has reconsidered its earlier characterization of the area where Dilmore Meats is located, and has now determined that this area is agricultural in nature and not commercial. This redetermination has a rational factual and legal basis, and is thus not clearly erroneous. Agencies are afforded wide discretion in the interpretation of the statutes they administer, and this interpretation should be followed unless it is clearly erroneous. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

    
    

13. Therefore, regardless of whether Dilmore Meats exists within 660 feet of the interstate and within 800 feet of the Respondent's sign, and the building where this sausage business is located can be seen from I-10, or 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 a lawful sign was not present when the applications were submitted. The proposed site was not in a commercial or industrial area within 800 feet of business activities that were visible from the interstate when the Respondent certified on its applications that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes. There was presented no evidence to show that the business (Dilmore Meats) was making any effort in 1978 to inform traffic on the interstate that it was located there. No evidence was presented to show that the coming and going of personnel was visible to traffic, or that the general public, business patrons, salesmen, workmen, or others doing business at the site could be seen by traffic or that there was any other indicia of business activity at the location such as an area for the parking of vehicles used by persons who visited or who did business at the site, that was visible to interstate traffic. In summary, nothing was visible from I-10 that would indicate that the subject sign was in an unzoned commercial area where some business activity was located. Activities that are 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 Department was correct in making its redetermination that there was no visible business activity in the area that would qualify the site as unzoned commercial, and the Respondent's permit 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 principal of estoppel, however, is not applicable to the factual situation present in this proceeding. The first essential element of estoppel is 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 sign was erected was not unzoned commercial, within 800 feet of a visible business, is sufficient to meet the higher standards. There was nothing about the site where Dilmore Meats was located to indicate to traffic on I-10 that a business was located there.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers 10279-10, 10743-10, 10744- 10, 10745-10

held by the Respondent, Food `N' Fun, Inc., authorizing a stacked, back-to-back, sign located on the south side of I-10, 1 mile and 600 feet west of U.S. 231 in Jackson County, Florida, be revoked, and the subject sign 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 32399-1550

(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 Building, M.S. 58 Tallahassee, Florida 32301-8064

Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-003746

Orders for Case No: 84-003746