STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Respondent. ) 84-3989T

) 84-3990T

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 13, 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

Haydon Burns Building, 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 its signs located as follows:

Case number 84-3984T, south side of I-10,

1 mile east of State Road 77 in Washington County, bearing permit number 11176-10;

Case number 84-3985T, south side of I-10,

.5 mile west of State Road 77 in Washington County, bearing permit number 11170-10;

Case number 84-3986T, south side of I-10,

1.05 miles west of State Road 77 in Washing ton County, bearing permit number 11172-10;

Case number 84-3987T, north side of I-10, sign facing east, 1.2 miles west of State Road 77 in Washington County, bearing permit number 11174-10;

Case number 84-3988T, north side of I-10, sign facing west, 1.2 miles west of State Road 77 in Washington County, bearing permit number 11175-10;

Case number 84-3989T, south side of I-10, sign facing east, 1.25 miles west of State Road 77 in Washington County, bearing permit number 11178-10; and

Case number 84-3990T, south side of I-10, sign facing west, 1.25 miles west of State Road 77 in Washington County, bearing permit number 11179-10,

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 has never been any zoning in effect at the locations where the signs were erected which would qualify these locations as permissible sites. Thus, the issue is whether the Respondent's permits should be revoked because the sign locations are not within zoned or unzoned commercial or industrial areas.

FINDINGS OF FACT

1. On May 18, 1979, and May 25, 1979, Henderson Signs filed applications for seven permits to erect seven outdoor advertising sign structures in Washington County, Florida, adjacent to Interstate 10 in the proximity of State Road 77.

   
   

2. These applications were field approved by the Department's outdoor advertising inspector and by his supervisor on or about May 30, 1979. Thereafter, on or about June 6, 1979, the Department issued permit numbers 11176-10, 11170-10, 11172-10, 11174-10, 11175-10, 11178-10 and 11179-10 to Henderson Signs. These permits authorized the erection of the signs in the vicinity of the I-10 and S.R. 77 interchange in Washington County, which are the subject of this proceeding.

   
   

3. Subsequent to the issuance of theme permits, Henderson Signs erected the signs at the permitted locations. Thereafter, Henderson Signs transferred to the Respondent, Tri-State Systems, Inc., all of its interest in these signs and in the permits which authorized them to be erected.

   
   

4. Prior to this transfer, the Respondent's representatives inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. Two of the Respondent's representatives testified that they received assurance from the outdoor Advertising Administrator in 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.

   
   

5. The subject permits had been issued by the Department because its district personnel believed that the proposed locations were in areas which had been zoned by the proper authorities of Washington County as commercial. Each of the permit applications submitted by Henderson Signs asserted that the site applied for was in a commercial or industrial zoned area.

6. However, these assertions by Henderson Signs on its permit applications were false. There is not currently nor has there ever been any zoning in effect in Washington County on land located along I-10. The Department's district personnel in Chipley were thus misled by the assertions made by Henderson Signs on its applications.

   
   

7. Although zoning ordinances are a matter of public record, and the Department's district personnel might have more thoroughly checked to ascertain if the subject sites were zoned as indicated on the applications, so also did the Respondent's representatives have this opportunity to ascertain the true zoning situation for the sites where they proposed to buy signs. The Respondent is an outdoor advertising company which has been in the business of outdoor advertising since at least 1976. It was aware that signs along an interstate highway must be located in either a zoned or an unzoned commercial or industrial area. Its normal procedure is to check with the county relative to zoning. Nevertheless, the Respondent did not verify the zoning status of any of the subject sites before consummating the purchase of these signs from Henderson Signs.

   
   

8. The subject signs are located in a rural setting, and there is no commercial activity located in the area.

   
   

9. Prior to October, 1984, these sites were inspected by the Department's Right-of-Way Administrator. As a result of this inspection, notices of violation were sent to the Respondent advising it that proceedings were being initiated to revoke the subject permits because the locations were not in a zoned or unzoned commercial or industrial area.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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.

    
    

11. 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. . . .

       
       

12. 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.

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

    
    

    C. 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.

    
    

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

    
    

    . . . The department shall effectively control or cause to be controlled, the erection and maintenance of outdoor advertising, advertis- ing signs and advertising structures along

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

    
    

15. 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. . . .

    
    

16. 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 unzoned areas, not in areas zoned commercial or industrial as represented on the applications. Moreover, the applicant for these permits certified on the applications that the sites 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.

    
    

17. 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. 3rd DCA 1982).

    
    

18. 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 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 signs bearing permit numbers 11176-10, 11170-10, 11172-10,

1174-10, 11175-10, 11178-10, and 11179-10, held by the Respondent, Tri-State Systems, Inc., authorizing signs in proximity to the I-10 and SR-77 interchange in Washington County, Florida, be revoked, and the subject signs be removed.

THIS RECOMMENDED ORDER entered this 1st 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 1st day of August, 1985.

COPIES FURNISHED:

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

Gerald S. Livingston, Esquire

1. O. Box 2151

   Orlando, Florida 32802-2151

   
   

   Hon. Paul A. Pappas Secretary

   Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

   STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   ) CASE NOS.	84-3984T
   )	84-3985T
   )	84-3986T
   )	84-3987T
   )	84-3988T
   )	84-3989T
   )	84-3990T

   DEPARTMENT OF TRANSPORTATION, )

   
   

   Petitioner,

   
   

   vs.

   
   

   TRI-STATE SYSTEMS, INC .,

   
   

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held on June 17, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Attorney at Law

   Department of Transportation

   Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

   
   

   For Respondent: Gerald S. Livingston, Attorney at Law

   Suite 1150 Hartford Building

   200 East Robinson Street Orlando, Florida 32801

   
   

   This matter was remanded by the First District Court of Appeal "for further proceedings and ruling by the hearing officer and agency regarding sufficiency of the evidence to support the estoppel defense." Tri-State Systems, Inc. v.

   Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA 1986). The cases were originally heard before William B. Thomas, Hearing Officer, on March 13, 1985. The transcript and exhibits from that proceeding are a part of the record herein. Based upon that record, the appellate court in Tri-State, supra, concluded that the Department's representative made representations to Tri-State that the sign permits on the seven signs at issue were legal prior to Tri- State's purchase of those signs from Henderson Sign Co. However, the court went on to remand the case, stating: "Any decision on whether estoppel should be applied in this case will depend upon properly made findings of fact as to each element in accordance with applicable legal principles." Id at 216.

   
   

   Pursuant to this mandate, a further evidentiary hearing was held on June 17, 1988. Petitioner, Department of Transportation (DOT), presented the testimony of Milford Truette and Gary J. Kissinger. DOT's Exhibit 1, the deposition of Emory Kelly, was admitted in evidence. Respondent, Tri-State Systems, Inc., (Tri-State) presented the testimony of Ronnie B. Gay.

   The transcript of the second hearing was filed on June 27, 1988. By agreement of the parties, proposed findings of fact and conclusions of law were filed on July 18, 1988. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Seven outdoor advertising sign permits were issued to Henderson Signs in Washington County, Florida, in 1979.

      
      

   2. Washington County was not zoned at the time these permits were issued to Henderson Signs.

      
      

   3. Tri-State was considering purchasing various sign locations which belonged to Henderson Signs.

      
      

   4. Tri-State inquired of DOT regarding the status of the various Henderson Signs' permits.

      
      

   5. DOT's representative told Tri-State that the seven permits in Washington County were legal.

      
      

   6. Tri-State relied on DOT's representation that the seven permits were legal.

      
      

   7. Based on this reliance, Tri-State did purchase the seven permits from Henderson Signs and the permits were transferred to Tri-State.

      
      

   8. Subsequent to the purchase, DOT brought these actions to revoke the seven permits because the locations had not been zoned commercial or industrial as had been represented by Henderson Signs in its permit applications.

      
      

   9. Tri-State has engaged in outdoor advertising in Florida since the early 1970's.

      
      

   10. Tri-State's representatives have been aware of the statutes and rules which regulate outdoor advertising in Florida since they began doing business in Florida.

       
       

   11. Tri-State paid Henderson Signs for the seven permits and also executed new leases with the landowners of the sites of the seven signs.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

       
       

   13. The Court in Tri-State Systems, Inc. v. Department of Transportation, supra, established the standard to be applied in this case on remand:

       
       

       The doctrine of equitable estoppel may be effectively applied against the state, although only in exceptional circumstances, upon a showing of the following elements: (1)

       A representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

       
       

   14. It has already been concluded by the court in Tri-State that DOT's representative made a representation of a material fact to Tri-State and that DOT now is asserting a contrary position on that same material fact. The first element of equitable estoppel has been met.

       
       

   15. As to the second element of reliance, it is well-recognized that the reliance must be both justified and in good faith. See Reedy Creek Improvement District v. State Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); The Florida Companies v. Orange County, Florida, 411 So.2d 1008; and the cases cited therein. Here, Tri-State clearly did rely on DOT's representations. Tri-State's reliance was justified since DOT's personnel had a duty to use reasonable care "to determine that no grounds for invalidating the permits existed" once they gratuitously responded to Tri-State's inquiries regarding the status of the seven permits. Tri-State, supra at 216. Additionally, DOT made no showing that Tri-State's reliance was not in good faith. Once Tri-State proved reliance, the burden shifted to DOT to prove that the reliance was unjustified or not in good faith. DOT failed to carry this burden. It is concluded that Tri-State, justifiably and in good faith, relied on DOT's representations.

       
       

   16. Finally, it is uncontroverted that Tri-State acted to its detriment based on DOT's representation. Tri-State purchased the seven permits from Henderson based on Tri-State's belief, formed in reliance on DOT's representation, that the permits were legal. Over time, Tri-State executed new leases on the sign locations as the old leases expired. Tri-State expended funds on the purchases and the new leases and Tri-State incurred contractual obligations with the landowners in the form of said leases. Clearly the third element of estoppel has been met.

       
       

   17. DOT argues that the third element requires a showing of a monetary "loss from damages, injury, prejudice or detriment to the party claiming it." Just because Tri-State has received income from the seven sign locations over time which may or may not equal or offset the costs incurred to purchase and maintain the locations, does not have any bearing on whether Tri-State relied to its detriment on the representations. The test is not whether Tri-State experienced a loss in net income exceeding the cost of the purchase and maintenance. The test is whether Tri-State charged its position to its detriment in reliance on the representation of DOT. This test has been met and DOT's argument to the contrary is specious.

       
       

   18. Based on the foregoing Findings of Fact and Conclusion of Law, it is further concluded that DOT is equitably estopped to revoke the seven sign permits at issue herein.

RECOMMENDATION

It is RECOMMENDED that the Department of Transportation enter a Final Order in these seven consolidated cases and therein dismiss each and every Notice of Violation and Notice to Show Cause.

DONE and ENTERED this 17th day of August, 1988, in Tallahassee, Florida.

Diane K. Kiesling 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 17th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3984T

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(10); 3(7); 4(1); and 5(5).

   
   

2. Proposed findings of fact 6 and 8 are rejected as being irrelevant.

   
   

3. Proposed finding of fact 7 is subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Tri-State Systems, Inc.

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(6); and 2(7).

COPIES FURNISHED:

Gerald S. Livingston Attorney at Law

Suite 1150 Hartford Building

200 E. Robinson Street Orlando, Florida 32801

Charles G. Gardner Attorney at Law

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

Kaye N. Henderson, Secretary Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Docket for Case No: 84-003984

Orders for Case No: 84-003984