STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0987T

) BILL SALTER ADVERTISING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

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

1. Thomas, held a formal hearing in this case on June 21, 1985, in Pensacola, 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, Msil Station

   58

   Tallahassee, Florida 32301-8064

   
   

   FOR RESPONDENT: Mr. Bill Salter, President

   Bill Salter Advertising, Inc. Post Office Box 422

   Milton, Florida 32570

   
   

   As a witness for Respondent.

   
   

   By notice dated February 13, 1985, the Department advised the Respondent that its sign located in Escambia County on the north side of 1-10, approximately 1.2 miles west of U.S 29, bearing permit numbers AE654-10 and AE655-

   10, was 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 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 Section 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. On or about June 18, 1981, the Department issued permit numbers AE654-10 and AE655-10 to the Respondent, Bill Salter Advertising, Inc., authorizing the erection of a sign on the north side of I-10, 1.2 miles west of U.S. 29 in Escambia County, Florida. Prior to the issuance of the permits in 1981, the site was field inspected and approved by a Department inspector.

      
      

   2. The Respondent's representative who submitted the permit applications designated on these applications that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

      Attached to these applications was a sketch prepared by the Respondent depicting the proposed sign location, and designating the business that was within 800 feet of this location to be a junkyard.

      
      

   3. This junkyard as it was characterized on the sketch accompanying the Respondent's applications was a business activity that was in operation in 1981. It was within 660 feet of the right-of-way of I-10, and the sign site proposed by the Respondent was within 800 feet of the business activities.

      
      

   4. The Department's outdoor advertising inspector who approved the applications found the site where the business was located, as well as the activities being conducted there, to have been visible from the main-traveled way of

I-10 in 1981. The Respondent and one of its representatives, who viewed the site in 1981, also found

that the business activities were visible from I-10 in 1981. Two Department witnesses who viewed this location in 1985 testified that they could not see either the business or the business activities from the main-traveled way of I-

1. However, neither of these Department representatives testified that they viewed the site in 1981, and their testimony has thus been rejected as less persuasive than the testimony of those who viewed the site in 1981. The more substantial competent evidence in this record supports a finding of fact that the business activities were visible from the main-traveled way of I-10 in 1981 when the applications were submitted and approved, and it is so found.

   
   

   1. Although the sketch accompanying the Respondent's applications designated the business that was in proximity to the proposed sign location as a junkyard, the evidence is inconclusive relative to what the nature of the business activities actually were at this site. The Department contends that the sign was permitted solely on the basis of the junkyard depicted on the Respondent's sketch, but the inspector who approved the permits testified that there may have been something else within 800 feet of the sign site other than the junkyard. He was tentative and indefinite when asked if his approval of the permits was based on anything other than what the sketch depicted. There was "a bunch of automobiles" on the business grounds in 1981 according to the Department inspector who visited the site in 1981. The Respondent's representative who submitted the applications and who prepared the sketch saw some tools, old cars and parts on the site. He called it a junkyard, but it could have been an auto parts business. Another Respondent witness characterized the business being conducted there as an auto repair business, and he has seen autos being repaired there. He has also seen a customer making payment for a repaired vehicle. He has seen the occupational license of the business operator, and it shows a retail business being conducted. Thus, there is insufficient evidence to support a finding of fact that a junkyard was being operated in the area where the Respondent's sign was permitted. In addition, Section 339.241(3), Florida Statutes, requires that junkyards located within 1,000 feet of interstate highways be screened from view from the highway. The business being conducted at the site where the subject sign was permitted is not so screened now, and was not screened in 1981.

   2. In summary, the weight of the evidence detailed above supports a finding that the business activity which the Respondent indicated on its applications qualified the proposed sign site as an unzoned commercial area, was within 660 feet of the Interstate and within 800 feet of the proposed sign site, and that the business activities were visible from the main-traveled way of I-10 in 1981. The weight of the evidence further supports a finding that in 1981 the business being conducted at this site was not a junkyard.

      
      

   3. Prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because he could see no visible commercial activity within 800 feet of the sign. He testified that a junkyard would not qualify a site as an unzoned commercial area because of the requirement in Section 339.241(3), Florida Statutes, that a junkyard be screened from view from the interstate. However, there is no evidence that this witness viewed the area in 1981. Thus, his testimony has less persuasive force than that of the Department inspector who viewed the site in 1981, and who could see the commercial activity from I-10. The Right-of-Way Administrator also testified that the requirement that a junkyard be screened from the interstate is part of the Highway Beautification Act of 1965. However, this requirement is not a part of the Florida Outdoor Advertising Act, Chapter 479, Florida Statutes.

      
      

   4. Although the Respondent certified on the applications that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes, the Respondent did not certify that the proposed sign would meet the requirements of the Highway Beautification Act of 1965, or that it would meet the requirements of any of the other statutes of Florida. This is not required.

      
      

   5. In February of 1985, the Department issued a Notice of Violation advising the Respondent that the subject permits were being revoked because the sign had not been erected in a zoned or unzoned commercial area due to the lack of any business activity that was visible from the roadway.

      
      

      CONCLUSIONS OF LAW

   6. 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.

      
      

   7. Section 479.11, Florida Statutes (1979), provides in part:

      
      

      No advertisement, advertising sign or advertis- ing 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. . . .

         
         

   8. 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.

      
      

   9. Section 479.02, Florida Statutes (1979), provides in part:

      
      

      1. It shall be the function and duty of the department, subject to current federal regulations, 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.

            1. Determine unzoned commercial and industrial areas;

               
               

   10. Section 479.01, Florida Statutes (1979), 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 activi- ties generally recognized as commercial or in- dustrial by zoning authorities in this state, except that the following activities may not be so recognized:

       1. Activities not visible from the main-traveled way.

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

       
       

   11. Section 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, adver- tising signs and advertising structures along the Interstate and Federal-Aid Primary Highway Systems. . . .

       
       

   12. 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. . . .

       
       

   13. Section 339.241, Florida Statutes (1979), provides in part:

       
       

       1. SHORT TITLE. This section shall be known as the "Florida Junkyard Control Law."

       2. DEFINITIONS.

          (a) "Automobile graveyard" means any establishment or place of business which is maintained, used, or operated for storing, keeping, buying, or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts.

       3. RESTRICTIONS AS TO LOCATION. No junk, junkyard, automobile graveyard, or scrap metal processing facility shall be operated or main- tained within 1,000 feet of the nearest edge of the right-of-way of any interstate or primary highway, except the following:

          1. Junkyards which are screened by natural objects, plantings, fences or other appro- priate means so as not to be visible from the main traveled way of the highway or otherwise removed from sight.

          2. Junkyards or scrap metal processing fa- cilities which are located in areas which are zoned for industrial use.

          3. Junkyards or scrap metal processing fa- cilities which are not visible from the main- traveled way of any interstate or primary highway.

             
             

   14. 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. However, the Department issued its permits in 1981 for the subject sign based upon the findings by its inspector that there was a business within 660 feet of the interstate, that the proposed sign site was within 800 feet of this business, and that the business activities were visible from the

       main-traveled way of I-10. It was thus determined by the Department that the Respondent's sign would be erected in an unzoned commercial area.

       
       

   15. Now the Department has reconsidered its issuance of the permits to the Respondent, contending that they were issued in error and should be revoked, because (1) there is an absence of visible commercial activity that would qualify the site as unzoned commercial, and (2) the site cannot be qualified as unzoned commercial on the basis of the existence of a junkyard there. Only the first has its foundation in Chapter 479, Florida Statutes. The second is totally outside the requirements of the Florida Outdoor Advertising Act. Although agencies are afforded wide discretion in the interpretation of the statutes and rules they administer, this interpretation need not be followed

       when it is clearly erroneous. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

       
       

   16. The business located in proximity to the Respondent's sign meets all the requirements of Chapter 479, Florida Statutes, to qualify the site as an unzoned commercial area. A junkyard, an auto parts business, or an auto repair business is an activity generally recognized by zoning authorities as commercial or industrial. It was visible from the main-traveled way of I-10 when the permits were issued in 1981. It is within 660 feet of the interstate. The Respondent's sign is within 800 feet of this business. From the photographs which are in evidence, the area appears not to be rural in nature; it does not appear to be residential; it appears to be industrial or commercial. Therefore, the Department's redetermination that the area is not unzoned commercial because of the lack of visibility of the business activity is arbitrary, unreasonable, and not supported by the evidence. It is thus clearly erroneous.

       
       

   17. Moreover, even if the facts warranted a finding that the business activity was a junkyard, there is nothing in Chapter 479, Florida Statutes, to preclude it from qualifying the site as unzoned commercial. The failure of the operator of a junkyard to properly fence this business is outside the scope of the Florida Outdoor Advertising Act, and the sign owner should not be subjected to permit revocation proceedings that are not based on Section 479.08, Florida Statutes.

       
       

   18. Pursuant to Section 479.08, Florida Statutes, permits once issued cannot be revoked unless the applications contain 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 did not submit applications which contained knowingly false or misleading information, that the Respondent has not violated any of the provisions of Chapter 479, and that the sign the Respondent erected does not violate any of the provisions of Chapter 479. Thus, the statutory prerequisites for permit revocation are not present, and the Respondent's permits may not be revoked. If the Department desires to broaden its statutory authority to revoke lawfully issued permits, so as to include the authority to revoke whenever some violations outside the

       scope of Chapter 479 have occurred, then it should seek an appropriate change in the wording of 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 principal of estoppel, however, is not applicable to the factual situation present in this proceeding. The first essential element of estoppel is 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, 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 the Department's violation notice seeking revocation of the Respondent's permits and removal of the Respondent's sign on the north side of I-10, 1.2 miles west of U.S. 29 in Escambia County, Florida, be dismissed, and that permit numbers AE654-10 and AE655-10 remain in effect.

THIS RECOMMENDED ORDER entered this 21st 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 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985.

COPIES FURNISHED:

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

Mr. Bill Salter, President Bill Salter Advertising, Inc. Post Office Box 422

Milton, Florida 32570

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

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32031

Docket for Case No: 85-000987

Orders for Case No: 85-000987