STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3991T

) 84-3992T

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 15, 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 permits numbered AL083-10 and AL084-10 for signs located on the south side of I-10, approximately 1.3 miles west of U.S. 231, in Jackson County, were in violation of Section 479.11, Florida Statutes, and Rule 14-10.05(1), Florida Administrative Code. The Department seeks to revoke these permits on the grounds that there is an absence of visible commercial activity at this location to qualify the site as an unzoned commercial area pursuant to Sections 479.11 and 479.111, Florida Statutes, and Rule 14-10.05, Florida Administrative Code.

Thus, the issue is whether the Respondent's permits should be revoked because the permit location is not within an unzoned commercial or industrial area.

FINDINGS OF FACT

1. On or about March 8, 1977, Henderson Signs filed applications for two permits to erect an outdoor advertising sign in Jackson County, Florida, on the south side of Interstate 10, approximately 1.3 miles west of U.S. 231.

2. These applications were field inspected by the Department's outdoor advertising inspector, they were approved, and the Department issued permits numbered 9126-10 and 9127-10 for the requested location to Henderson Signs. On or about January 4, 1984, permits numbered 9126-10 and 9127-10 were reported lost, and the Department issued replacement tags numbered AL083-10 and AL084-10.

   
   

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

   
   

4. When Henderson Signs submitted the applications for the subject permits it designated thereon that the proposed location was within 800 feet of a business known as Lee's or Dilmore's Packing Plant. These applications also certified that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

   
   

5. The business known as Lee's or Dilmore's Packing Plant is located within 800 feet of the permitted site. The building in which this business is conducted appears from the interstate to be a barn, or a livestock shed, or an outbuilding. It is visible from I-10, but there is nothing about the building or the surrounding area to indicate that it is a business, or that any commercial activity is being conducted at this location. There is nothing to distinguish the Dilmore building from any other rural building in Jackson County, and from the photograph that was received in evidence the area appears to be agricultural or rural in nature, and not commercial.

   
   

6. The Respondent contends that there is an on-premise sign on the Dilmore property and that this sign was visible from I-10 in 1977 and is visible now. The Department's witnesses testified that there was and is nothing to indicate to traffic on the interstate that any commercial activity existed at the subject location. The photograph in evidence shows the area to be rural and does not show a sign, thereby tending to corroborate the Department's witnesses. There is no evidence showing where the Dilmore sign is with reference to the interstate, what its size is, what its copy is, or how visible it is to traffic on I-10. As a result, the evidence is not of sufficient quality or quantity to support a finding of fact that the Dilmore sign exists now, or that it was ever there, or that such a sign would indicate to interstate traffic that a business activity exists at the subject location.

   
   

7. During the summer of 1984 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 permitted location. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because they were not for a location in a zoned or unzoned commercial area.

   
   

8. Prior to the transfer of the permits from Henderson Signs to the Respondent, representatives of the Respondent testified that they inquired at the Department's district office in Chipley whether the permits to be purchased from Henderson Signs were valid permits. They further testified that they received assurance from the Chipley district office that these permits were legal permits. This testimony, however, is totally self-serving without some form of corroboration, and is thus not of sufficient quality to support a finding of fact.

   CONCLUSIONS OF LAW

   
   

9. 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.

10. 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. . . .

       
       

11. 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.

    
    

12. 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.

    
    

13. Rule 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, ad- vertising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .

14. 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; . . .

          
          

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 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. . . .

    
    

16. 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.

    
    

17. The Department's inspector who approved the applications of Henderson Signs in 1977 did not consider subsection (d) of Section 479.01(10), Florida Statutes, which excludes activities not visible from the main-traveled way from qualifying a site as unzoned commercial. The Department contends now that the subject permits were thus issued in error, and it seeks to correct this error by revoking the Respondent's permits. Such an error as this is correctable under Rule 14-10.02, Florida Administrative Code, and Section 479.02(1)(c), Florida Statutes, which give to the Department the duty to effectively control the continued existence of signs along controlled highways, and to determine what are unzoned commercial areas.

    
    

18. Accordingly, the Department has reconsidered its issuance of the permits held by the Respondent, and has now determined that the subject area is not commercial in nature, that the activities in and around the Dilmore Packing Plant are not visible from the main-traveled way of I-10, and that this area may not be recognized as unzoned commercial. The Department's 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)

    
    

19. Regardless of whether the Dilmore Packing Plant exists within 660 feet of the interstate and within 800 feet of the site of the Respondent's permits, and the building where this business is located can be seen from I-10, or whether the subject applications were approved by the inspector and the permits subsequently issued by the Department, the statutory prerequisite for the

    issuance of lawful permits 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 Henderson Signs certified on its applications that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes. There was not presented any substantial, competent evidence to show that the business known as Dilmore Packing Plant was making any effort in 1977 to inform traffic on the interstate that it was located there. No evidence was presented to show that any business activities were visible to traffic, such as evidence 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 indicia of business activity at the location that was visible to traffic on the interstate. In summary, nothing was visible from I-10 that would indicate that the permitted site 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 permits may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

20. 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. Instead, the permits were approved on the representations of Henderson Signs as contained in the applications. Consequently, the doctrine of estoppel is not applicable.

    
    

21. Finally, the purchase of the subject permits by the Respondent from Henderson Signs does not affect the situation. The Respondent's position is 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); Prestress Erectors, Inc. v. James Talcott, Inc., 213 So.2d

296 (Fla. 3rd DCA 1968).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AL083-10 and AL084-10 held by the

Respondent, Tri-State Systems, Inc., authorizing signs on the south side of I- 10, approximately 1.3 miles west of U.S. 231 in Jackson County, Florida, be revoked, and any signs erected pursuant to these permits be removed.

THIS RECOMMENDED ORDER entered this 8th day of October, 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 8th day of October, 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

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 84-003991

Orders for Case No: 84-003991