STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-

0327T

) BILL SALTER OUTDOOR ADVERTISING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to a notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William

1. Thomas, held a formal hearing in this case on July 23, 1985, in Pensacola, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

   
   

   APPEARANCES

   
   

   FOR PETITIONER: Charles G. Gardner, Esquire

   Haydon Burns Building, Mail Station

   58

   Tallahassee, Florida 32301-8064

   
   

   FOR RESPONDENT: Mark J. Proctor, Esquire

   Post Office Box 12308 Pensacola, Florida 32581

   
   

   By notice dated December 21, 1984, the Department advised the Respondent that its sign located in Escambia County on the north side of I-10, approximately 1.6 miles east of SR 297, bearing permit numbers AL844-12 and AL845- 12, was in violation of Section 479.11, Florida Statutes. 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 Rule 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. The Respondent, Bill Salter Outdoor Advertising, Inc., was issued permits numbered AI-962-10 and AI-963-10 on or about April 28, 1983. These permits were for the erection of a sign located on the north side of I-10, approximately 1.6 miles east of SR 297, in Escambia County, Florida. They were issued because of the proximity of an automotive business noted on a sketch attached to the applications submitted by the Respondent as "Bill's Paint and Body Shop." In February of 1984, replacement tags numbered AL844-12 and AL845-12 were issued.

      
      

   2. The Respondent submitted the applications and the attached sketch for these permits, and designated on the applications that the sign location would be in an unzoned area within 800 feet of a business. The sketch shows what is designated as "Bill's Paint and Body Shop" to be in close proximity to the proposed sign location. On each of these applications the Respondent certified that the sign would meet all requirements of Chapter 479 of the Florida Statutes.

      
      

   3. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of a "Pritchett's Paint and Body Shop" nearby the proposed sign location. This inspector was able to see several autos on the Pritchett property and some activity around these autos. Apparently because the inspector expected to find an automotive business near the proposed sign site as represented on the Respondent's applications, it was concluded that such a business existed there, and the applications were approved.

      
      

   4. Subsequently, a sign was erected on the Pritchett property with the copy "Willie's Paint and Body Shop," but this sign was not in place when the site inspection was made. From the main traveled way of I-10, the inspector was not able to testify specifically that any paint and body work was observed, or that any commercial activity could be seen from the interstate. The inspector merely testified "I observed activity around those automobiles going on."

      
      

   5. The Pritchett property is residential. Mr. Pritchett lives there. He does operate a paint and body

      business from his back yard. He has had an occupational license since 1977, renewing these businesses each year through 1984. Although he could not produce a license for the year when the permits were approved, this does not mean that he didn't actually renew the license for this year.

      
      

   6. Nevertheless, as viewed from I-10, only the sign which was erected subsequent to the approval of the permits and the rear portion of some autos, can be seen. The Department's inspector made a mistake in approving the Respondent's applications because no commercial activity is visible from the interstate. The testimony of the Respondent and his witnesses, including Mr. Pritchett, is rejected as being inconsistent with what can be seen by viewing the photographs in evidence. Moreover, whoever erected the sign had to feel that the view from I-10 was inadequate to qualify the site as commercial without it.

      
      

   7. During the summer of 1984, the subject site was inspected by a Department 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 sign. In December of 1984, the Department issued its notices of violation advising the Respondent that the subject sign permits were being revoked.

      
      

      CONCLUSIONS OF LAW

      
      

   8. 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.

      
      

   9. Section 479.11, Florida Statutes (1983), 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. . . .

   10. Section 479.111, Florida Statutes (1983), 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 un- zoned areas subject to agreement estab- lished by s. 479.02.

       
       

   11. Section 479.01, Florida Statutes (1983), 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:

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

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

       
       

   12. 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 Pri- mary Highway Systems. . . .

       
       

   13. Section 479.02, Florida Statutes (1983), provides in part:

       
       

       1. It shall be the function and duty of the department, subject to current federal regu- lations, 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; . . .

             
             

   14. 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 con- tains knowingly false or misleading informa- tion or that the permittee has violated any of the provisions of this chapter. . . .

       
       

   15. 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.

       
       

   16. The Department's inspector who approved the Respondent's applications apparently did not fully 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 inspector acted in reliance on what the diagram accompanying the applications indicated, and on what was expected to be found at the site. This expectation led to the erroneous conclusion that the commercial activities of a paint and body shop were visible at the site as viewed from the main-traveled way of the interstate. However, the photos in evidence indicate that this area is residential in nature, and that commercial activity is not visible to traffic traveling on I-10. Thus, the photos confirm the error of the inspector, whose failure to fully consider the visibility from the interstate of what was considered to be business activities led to the approval of the site as a permittable location. Such errors as these, however, are 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.

       
       

   17. 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 because the activities in and around the Pritchett paint and body business are not visible from the main- traveled way of I-10, and that this area may not be recognized as unzoned commercial. This redetermination by the Department 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).

       
       

   18. Regardless of whether what was called "Bill's" or "Willie's" or "Pritchett's" Paint and Body Shop exists within 660 feet of the interstate and within 800 feet of the site of the Respondent's permits, or whether the subject applications were approved by the inspector and the permits subsequently issued by the Department, whatever business activities being conducted near the site are not visible to traffic on the interstate. Therefore, 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 visible to traffic on 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. 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.

       
       

   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. 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 the Respondent as contained in the applications. Consequently, the doctrine of estoppel is not applicable.

RECOMMENDATION

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

RECOMMENDED that permits numbered AL844-12 and AL845-

12 held by the Respondent, Bill Salter Outdoor Advertising, Inc., authorizing signs on the North side of I-10, approximately 1.6 miles east of SR 297 in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed.

THIS RECOMMENDED ORDER entered this 31st 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 31st day of October, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-0327T

The Proposed Findings of Fact submitted by the parties are ruled upon as follows:

Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Rejected, as irrelevant.

3. Rejected, as irrelevant.

4. Accepted.

5. Rejected, as irrelevant.

6. Accepted relative to use of sketch. Rejected relative to remainder, as irrelevant.

7. Accepted.

8. Accepted relative to the photos. Rejected relative to remainder, as irrelevant.

Respondent's Proposed Findings of Fact:

1. Accepted.

2. Accepted.

3. Accepted.

4. Rejected, as irrelevant.

5. Rejected.

6. Accepted relative to the application. Rejected relative to remainder, as irrelevant.

7. Rejected, as irrelevant.

8. Accepted relative to visibility of the commercial activity. Rejected relative to remainder.

9. Accepted relative to everything except the visibility from I-10. Rejected, relative to the visibility from I-10.

10. Accepted.

11. Rejected relative to visibility from I-10. Accepted relative to the remainder.

12. Accepted.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581

Hon. Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Bldg.

Tallahassee, Florida 32301

Docket for Case No: 85-000327

Orders for Case No: 85-000327