STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, ) CASE NOS. 84-3972T

) 84-3973T

vs. ) 84-3978T

) 84-3979T

TRI-STATE SYSTEMS, 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 March 14, 1985, in Chipley, 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

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

For Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

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 2.65 miles and the other approximately 2.85 miles east of SR 276, bearing permit numbers AI998-10, AI999-10, AJ001-10 and AJ002-10, 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 October 13, 1981, Henderson Signs filed applications for four permits to erect two outdoor advertising signs in Jackson County, Florida, on the south side of Interstate 10, one approximately 2.65 miles and the other approximately 2.85 miles east of SR 276.

2. These applications were field inspected by the Department's outdoor advertising inspector and by his supervisor, they were approved on or about November 2, 1981, and the Department issued permits for the requested locations to Henderson Signs.

   
   

3. Subsequent to the issuance of these permits, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in the permits which authorized the subject signs to be erected.

   
   

4. On or about March 23, 1983, the Respondent filed outdoor advertising permit affidavit forms requesting that the Department issue replacement tags for the subject signs because the tags previously issued had been lost. The Department replaced the older permit tags with new tags numbered AI998-10,

   AI999-10, AJ001-10 and AJ002-10.

   
   

5. A business known as Brooks Construction Company is located within 800 feet of each of the subject sign locations. At various times some construction equipment can be seen parked in the vicinity of Brooks Construction Company. Although the view from 1-10 is partially obstructed by trees, this equipment might be seen from the interstate if one were looking at the right spot. Also, a small on-premise sign is located at this site, but the view of this sign is no better from 1-10 than the equipment is.

   
   

6. The business known as Brooks Construction Company is located in a structure that resembles a brick residential building, which is used as a residence. A portion of this residential building is visible from 1-10, but is as obscured from view as the equipment and the sign are.

   
   

7. The area where the subject signs are located is rural in nature. There is nothing about the building used by Brooks Construction Company that would indicate to a traveler on 1-10 that anything other than a residence was located at this site, even if the traveler were able to see this building from the interstate.

   
   

8. Prior to the transfer of the permits from Henderson Signs to the Respondent, a representative of the Respondent testified that he inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. He further testified that he received assurance from the Chipley district office that these permits were legal permits. This testimony, however, is self-serving and uncorroborated, and thus is not of sufficient quality to support a finding of fact.

   
   

9. Henderson Signs submitted the applications for the subject permits, and designated thereon that the proposed locations were in an unzoned commercial area within 800 feet of a business. These applications also certified that the signs to be erected met all of the requirements of chapter 479, Florida Statutes.

   
   

10. During the summer of 1984, the sites were inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the signs. As a result, the Department issued notices of violation advising the Respondent that the subject sign permits were being revoked.

    CONCLUSIONS OF LAW

    
    

11. 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.

    
    

12. Section 479.11, Florida Statutes (1981), 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. . . .

       
       

13. 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.

    
    

14. Section 479.01, Florida Statutes (1981), 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:

    (a) Outdoor advertising structures.

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

    (f) Activities conducted in a building principally used as a residence.

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

    
    

15. 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. . . .

    
    

16. 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 . . . .

    
    

17. Pursuant to these statutes and rules, the Department has the 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. Regardless of whether the applications for the subject permits were approved by the Department, and the permits subsequently issued, the statutory prerequisites for the erection of lawful signs at the locations which are the subject of this proceeding were not present when the applications were submitted. The subject sites were in an unzoned area, but they were not within 800 feet of a business that was visible from the main-traveled way of I-10 as required. Moreover, the business activity in the area was being conducted from a building used primarily as a residence, which is excluded by the statutory definitions from constituting a cognizable business activity. Finally, the applicant for the permits certified on the applications that the signs would meet all the requirements of chapter 479, Florida Statutes, but they did not. Thus, the Respondent's permits may be revoked pursuant to section 479.08, Florida Statutes.

    
    

18. The fact that the subject permits were transferred to the Respondent from the applicant, Henderson Signs, does not alter the situation. The Respondent's position can be no better than that of Henderson Signs. Illegal or invalid permits in the hands of Henderson Signs cannot be vitalized by their transfer or assignment to Tri-State Systems, Inc. Shreve Land Co. v. J. & D. Financial Corp., 421 So. 2d 722 (Fla. 3d DCA 1982).

    
    

19. 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. 3d DCA 1984); Salz v. Department of Administration, Division of Retirement, 432 So. 2d 1376 (Fla. 3d DCA 1983). In this case the facts do not support a finding that the Department made such a representation, thus foreclosing the applicability of the doctrine of estoppel.

RECOMMENDATION

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

RECOMMENDED that permit numbers AI998-10, AI999-10, AJ001-10 and AJ002-10, held by the Respondent, Tri-State Systems, Inc., authorizing two signs on the south side of I-10, 2.65 miles and 2.85 miles east of SR 276 in Jackson County, Florida, be revoked, and the subject signs removed.

THIS RECOMMENDED ORDER entered this 6th 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 6th day of August, 1985.

COPIES FURNISHED:

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

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Honorable Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NOS. 84-3972T

84-3973T

TRI STATE SYSTEMS, INC., 84-3978T 84-3979T

Respondents.

/

FINAL ORDER

A complete review of the entire record in this matter has been made. The Recommended Order of the Hearing Officer is attached and such findings as are not rejected herein are adopted. The following abbreviations are used herein:

"T" for Transcript, "p" for page.

Respondent's exception number one is without merit because the only testimony elicited to show that assurances were given by the Chipley office of the State Department of Transportation to Tri State that the sign permits in question were legal was testimony from Tri State Management and employees. This testimony was not corroborated and the Hearing Officer was within his discretion to determine that said testimony was not of sufficient quality to prove that which it asserted. See McDonald v. Department of Banking and Finance, 346 So.2d

569 (Fla. 1st DCA 1977) in which the court noted that, "a reviewing court will naturally accord greater probative force to the hearing officer's contrary findings when the question is simply the weight or credibility of testimony by witnesses. . ." Id. at 579. This view has also been incorporated into Section 120.68(10), Florida Statutes which provides in part that ". . . the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact."

Respondent's exception number two is logically related to exception number one and it too is without merit because even if representations were made by the agents of the Department, the doctrine of estoppel can not be used to preclude the Department from carrying out its mandated duty. This is true even when Department agents err in applying the law in furtherance of their own Departmental responsibilities. Any interpretation, policy or action beyond the scope of, or out of harmony with the underlying legislation is a mere nullity.

See e.g. U.S.V. Harionott, 431 U.S. 864 (1977); Manhatton General Equipment Co.

vs. Commissioners, 297 U.S. 129 (1936); Board of Optometry, Department of Professional Regulation vs. Florida Medical Association, 463 So.2d 1213 (Fla. 1st DCA 1985); Roth vs. State, 378 So.2d 794 (Fla. 2nd DCA 1980); Florida Grocers Coop Transport vs. Department of Revenue, 273 So.2d 142 (Fla. 1st DCA 1973).

Conclusion of Law Number 9 of the Hearing Officer is therefore rejected to the extent that it implies that the doctrine of estoppel can preclude the Department from enforcing legislative enactments. Besides illegal or invalid permits cannot become vitalized and legal by the mere transfer of ownership.

Shreve Land Company v. J & D Financial Corporation, 421 So.2d 722 (Fla. 3rd DCA 1982).

Further, there is competent, substantial evidence from the record showing that the Respondent's signs are not located within a cognizable unzoned commercial or industrial area because the business activity can not be seen from the main traveled way. (1.p. I-10) (T.pp. 16, 22) There is also competent, substantial evidence showing that the signs in question are not located within a cognizable unzoned commercial or industrial area because the "activity" which would qualify the site as being unzoned commercial is in the instant case being conducted from a building which is principally used as a residence and thus is in contravention of Sections 479.01(11)(f) and 479.11, Florida Statutes. (T.pp. 13, 17, 20)

Accordingly, it is Ordered that permit numbers AI998-10, AI999-10, AJ00I-10 and AJ002-10 held by Tri State Systems, Inc. be revoked and that the two signs located in Jackson County on the south side of I-10, one approximately 2.65 miles and the other approximately 2.85 miles east of SR 276 be removed within 30 days of the date of this Order.

DONE AND ORDERED this 23rd day of October, 1985.

THOMAS E. DRAWDY

Secretary

Department of Transportation FILED Oct 23 1985 D.O.T. CLERK

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Copies Furnished:

Gerald Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802

William B. Thomas Hearing Officer DOAH

2009 Apalachee Parkway

Tallahassee, Florida 32301

Maxine F. Ferguson Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 84-003972

Orders for Case No: 84-003972