vs. ) CASE NO. 84-3877T
Respondent. )
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 27, 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.
FOR PETITIONER: Maxine F. Ferguson, Esquire
Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
FOR RESPONDENT: J. Paul Griffith, Esquire
By notice dated October 3, 1984, the Department advised the Respondent that its sign located on the north side of I-10, approximately 1.8 miles west of SR
267 in Gadsden County, bearing permit number AE315-10, 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 is an absence of commercial activity within the required distance of this sign to qualify the site as an unzoned commercial or industrial area pursuant to Sections 479.02 and 479.111, Florida Statutes, and Section 14-10.05, Florida Administrative Code. Thus, the issue is whether the Respondent's permit should be revoked because the sign location does not meet the requirements for designation as an unzoned commercial or industrial area.
The Respondent, C-Sand Company, was issued permit number AE315-10 on May 8, 1981. This permit authorized the erection of a sign to be located approximately 1.8 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area and the permit was granted because of its proximity to a nearby commercial activity known as Imperial Nurseries.
Prior to submitting an application for this permit to the Department, the owner of the Respondent company contacted the Department's inspectors in the Chipley district office to determine where a sign could be legally erected. He did this in order to locate a site which would be permittable before entering into a lease on the property.
The Department's district supervisor met the Respondent's owner in April of 1981 in Quincy. The two of them drove I-10 for a couple of hours looking for a sign site which would be permittable. The Department's district supervisor informed the Respondent that only two locations could be issued a permit, one of these being the site which is the subject of this proceeding.
Based upon this representation, the Respondent entered into a lease for this site, subject to issuance by the Department of a permit to erect a sign thereon.
After all of this had transpired, on May 4, 1981, the Respondent completed the permit application and submitted it to the Department.
Prior to the Department's issuance of the subject permit, one of its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of the subject sign. Based on this inspection he recommended the issuance of the permit upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I-10, and visible from the main traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be.
The area in question is rural in nature and generally suitable for agricultural activities. However, the business being conducted by Imperial Nurseries in 1981 was the growing of ornamental evergreens primarily for distribution in Northern markets. These ornamental evergreens were grown in containers on top of the ground, and shipped by truck. The cuttings were grown, then rooted, and planted in containers until mature. Between 1,500-2,000 yards of potting material was hauled in by truck each year from Tennessee, Georgia and Canada. This material consists of pine bark, peat moss and sand, which is mixed on the premises. The entire nursery is irrigated by an impact sprinkler system. There are 260 acres under irrigation. Approximately 1,400 tons of liquid fertilizer are mixed each year, and delivered via this irrigation system. There has been a weather shed on the property since before 1981, and this is within 660 feet from I-10. Portable toilets are located in various places on the property to accommodate the nursery employees. Beyond 660 feet from I-10 is a potting station and a loading area. Further away is an office building, two lunch rooms, and two storage buildings for fertilizer and peat moss. Nevertheless, parts of the overall operation of conducting the business of this nursery are situated 660 feet and less from I-10.
Imperial Nursery ships its mature evergreens via truckers and brokers. Nursery employees assemble the shipments in the field, and they are brought to a central location for loading onto the trucks. These trucks are 40-45 foot refrigerated tractor-trailers. Approximately 400 truck loads of cuttings are shipped each year to an area from Washington D.C. to Canada
The operation of Imperial Nurseries is the same now as it was in 1981.
The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had also conducted a field inspection of the area. Both of them based their approvals on the weather shed, the portable toilets, and the activities observed by them such as the employees moving the potted plants around, the loading and unloading of material taking place, and the employee activity throughout the area but particularly in the vicinity of the weather shed.
The site where the Respondent proposed to erect his sign was within 800 feet of the various locations on the Imperial Nurseries property where its loading, unloading, or other activities took place. The assertion of the Respondent on his sign permit application that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspector and his supervisor concurred in this characterization of the area.
Neither has the Respondent violated any of the provisions of Chapter 479, Florida Statutes. All of the facts were set forth on his permit application, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permits were granted on the basis of this determination, not on the representation of the Respondent.
In the summer of 1984, the subject site was inspected by the Department's Right-of-Way Administrator, who determined that the business being conducted by Imperial Nurseries was agricultural, and not commercial in nature. Although Imperial Nurseries has an agricultural exemption on its property and its employees are classified as agricultural for withholding tax purposes, the facts support a finding that Imperial Nurseries is a commercial activity. There is no statutory definition of "agricultural" and the Department has not defined the term by rule. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, defines "agriculture" as the cultivation of the ground, the art of preparing the soil, the tillage or the culture of the earth. These are not the activities of Imperial Nurseries.
Pursuant to the issuance of the sign permit by the Department, the Respondent's lease on the property where the sign was erected became effective, and this lease continues to date.
CONCLUSIONS OF LAW
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 there for, pursuant to Chapter 479, Florida Statutes.
Section 479.11, Florida Statutes (1981), provides in part:
No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
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.
. . .
Section 479.111, Florida Statutes (1981), 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.
Section 479.02, Florida Statutes (1981), provides in part:
It shall be the function and duty of the department, subject to current federal regu- lations, to:
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 indus- trial areas.
Section 14-10.09(2), Florida Administrative Code, adopts the agreement between the United States and the State of Florida. Sections I, 1, B., C. and J., thereof provide:
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 indus- trial by zoning authorities in this State except that the following activities may not be so recognized:
Outdoor advertising structures.
Agricultural, forestry, ranching, grazing, farming, and related activities, including,
but not limited to, wayside fresh produce stands.
Transient or temporary activities.
Activities not visible from the main traveled way.
Activities more than six hundred sixty (660) feet from the nearest edge of the right-of-way.
Activities conducted in a building principally used as a residence.
Railroad tracks and minor sidings.
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. All measurements shall be made from the outer edges of the regularly used buildings, parking lots, storage
or processing and landscaped areas of the commercial or industrial activities and
such measurements shall be along or parallel to the edge of the pavement of the highway.
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.
Section 14-10.02, Florida Administrative Code, provides in part:
. . . (T)he department shall effectively con- trolor 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. . . .
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 deter- mines that the application for the permit contains knowingly false or misleading infor- mation or that the permittee has violated any of the provisions of this chapter. . . .
Pursuant to these statutes and rules the Department has the duty to control the erection of outdoor advertising signs along the Interstate and Federal-Aid Primary highways, and to determine unzoned commercial and industrial areas. The Department initially determined that the area in question was unzoned commercial based primarily on the activities observed by its inspectors to be conducted at Imperial Nurseries. Thereafter, the Department's Right-of- Way Administrator made a subsequent determination that this area is agricultural
and not commercial in nature. It is upon this later determination that the Department seeks to revoke the Respondent's permit. Yet the facts and circumstances are essentially the same as existed when the permit application was approved.
The Department now contends that it erred in 1981 when it approved the Respondent's application and issued the permit, but that this error is correctable now under its duty pursuant to the Governor's Agreement to exercise effective control of sign permits along interstate highways. The fault in this reasoning is that the Department had the same duty to exercise effective control over outdoor advertising when it permitted the Respondent's sign, and if it later changes its construction of the statutes and rules, this change should have prospective application only. The Department should not be at liberty to exonerate itself from what it now considers to have been the erroneous issuance of a permit by placing the sole blame for this error on the Respondent when the Department participated in the commission of the error.
The Department may not vacillate in its determination of what is and what is not an unzoned commercial area to the detriment of the general public. In 1981 the owner of a business sought the assistance of the Department through its authorized personnel to locate a permittable site to place a sign advertising this business. The Department personnel assisted him to locate such a site, and he completed the permit application form pursuant to the representation of the Department that the site selected was permittable. This site was subsequently inspected by two Department representatives to determine the veracity of the information supplied by the Respondent, and this information was found to be accurate. The business of Imperial Nurseries was determined by the Department to be commercial in nature. Upon this determination the permit was issued under the aegis of the Department for the erection of a lawful sign.
More than four 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 the selection of the site in the first place, had erected the sign illegally, because he should have known that the site was not permittable. Such vacillation as this with its concomitant adverse consequences to the public who rely on authorized representatives of government should not be countenanced.
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.
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 to its detriment.
There is sufficient evidence to support a finding that the Department is estopped to now remove the Respondent's sign. See Hollywood Beach Hotel Co.
v. City of Hollywood 329 So.2d 10, at 18 (Fla. 1976), where the Florida Supreme Court applied the doctrine of estoppel upon a finding that "the Petitioner's cause [is] pregnant with equity." 1/
Finally pursuant to Section 479.08, Florida Statutes, a permit once issued cannot be revoked unless the application contains knowingly false or misleading information or unless the permittee has violated the provisions of Chapter 479. The facts detailed above support the findings made that the Respondent has not submitted an application which contains knowingly false or misleading information, and that the Respondent has not violated any of the provisions of Chapter 479, Florida Statutes. Thus, the statutory prerequisites for permit revocation are not present, and the Respondent's permit may not be revoked. Accordingly, the Department's violation notice should be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking removal of the
S.R. 267 in Gadsden County, Florida, be dismissed; and that permit number AE 315-10 remain in effect as a permit for a non-conforming sign.
THIS RECOMMENDED ORDER entered this 10 day of July, 1985 in Tallahassee, Leon County, Florida.
WILLIAM B. THOMAS
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1985.
1/ This is consistent with the Department's application of the principle of estoppel in appropriate cases. See, for example, D.O.T. v. National Advertising Co. (DOAH Case No. 82-560T), Foster and Kleister, Inc., v. D.O.T. (DOAH Case No. 79-387T) and Lamar Advertising Co. v. D.O.T. (DOAH Case No. 78-2179T).
Maxine F. Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
J. Paul Griffith, Esquire Post Office Box 207 Marianna, Florida 32446
Hon. Paul A. Pappas Secretary
