STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3290T

) PETERSON OUTDOOR ADVERTISING ) CORPORATION, )

)

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 this case on February 5, 1986, in Orlando, Florida. The transcript was filed on March 7, 1986, and the parties were allowed 30 days thereafter to submit proposed findings of fact and conclusions of law. Several extensions to this period of time were granted, but nothing has been received from the parties.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064

For Respondent: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802-2151

By violation notice issued on August 21, 1985, the Respondent's sign adjacent to State Road 50, 1.4 miles west of SR

436 in Orange County, Florida, was charged with violations of the Outdo or Advertising Act for not having a state sign permit and for violating the spacing rule. The issue to be resolved is whether the subject sign violates the statutes and rules as alleged, and should be removed.

FINDINGS OF FACT

1. The Respondent's sign which is the subject of this proceeding was erected on Bennett Road, approximately 280 feet north of the intersection of Bennett Road with State Road 50, in Orange County, Florida. This location is approximately 1.4 miles west of SR 436, as alleged in the violation notice.

   
   

2. The subject sign is located on the west side of Bennett Road facing north and south which is parallel to State Road 50.

   
   

3. State Road 50 is a federal-aid primary highway. Bennett Road is a non-controlled road.

   
   

4. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway.

   
   

5. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case).

   
   

6. The sign which is the subject of this proceeding was erected without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in 1984.

   
   

7. The subject sign is visible to traffic on State Road 50, although it is perpendicular to Bennett Road and parallel to State Road 50.

   
   

8. There is another permitted sign owned by National Advertising Company located on the north side of State Road 50, east of the Bennett Road intersection, approximately 114 feet from the subject sign. The National sign faces east and west, not north and south, and it is not on Bennett Road.

   
   

9. Another permitted sign owned by Peterson Outdoor Advertising is located on the north side of State Road 50, approximately 475 feet west of the Bennett Road intersection.

   This sign faces east and west, not north and south as the subject sign does, and it is not on Bennett Road as the subject sign is.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has regulatory authority over outdoor advertising signs as prescribed by Chapter 479, Florida Statutes.

    
    

11. Section 479.07(1), Florida Statutes, prohibits the erection of a sign on any portion of a federal-aid primary highway without a state sign permit. Pursuant to Section 479.105(1), Florida Statutes, a sign which is erected adjacent to any portion of the right-of-way of a federal-aid primary highway without the permit required by Section 479.07(1) is illegal and should be removed.

    
    

12. The controlled portion of a federal-aid primary highway is that area which is within 660 feet of a federal-aid primary highway, pursuant to Section 479.11(1), Florida Statutes.

    
    

13. Section 479.07(9)(a)2., Florida Statutes, prohibits the erection of a sign on a federal-aid primary highway unless there is 1,000 feet of spacing between the sign to be erected and the closest permitted sign on the same side of the highway. The Governor's Agreement, Rule 14-10.09, Florida Administrative Code, under Spacing Of Signs, adds the requirement that the two signs face the same direction in order to be unlawful.

    
    

14. Since the subject sign is within 660 feet of State Road 50, a federal-aid primary highway, and is visible from the controlled road, it requires a permit. However the Respondent had applied for a permit for another location on a non-controlled road within 660 feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85-3017T). The Respondent erected the subject sign based on the Department's interpretation of the statutes and rules that a state permit was not required.

    
    

15. Now, upon reconsideration of the statutes and rules, and finding that its prior interpretation was erroneous, the Department seeks to remove the Respondent's sign which was erected without a state permit because the Department's interpretation was that a permit was not required when the proposed location was on a non-controlled road. The matter of the alleged violation of the

    spacing rule was also used to seek removal of this sign, but it is not clear from the evidence that the spacing rule has been violated because the evidence does not clearly show the subject sign to be on the same side of the highway and facing the same direction as the closest permitted sign. Thus, the Department has not carried its burden of proof on this issue.

    
    

16. The principle that the Department may not seek sanctions against a sign upon its reconsideration of a prior erroneous interpretation of the statutes and rules has been recently enunciated in Wainwright v. Department of Transportation, 11 FLW 938 (Fla. 1st DCA, April 25, 1986), Food-N-Fun v. Department of Transportation, 11 FLW 1654 (Fla. 1st DCA, August , 1986), C-Sand Company v. Department of Transportation, Case No. BJ-392 (Fla. 1st DCA, September 9, 1986), Tri-State Systems, Inc., v. Department of Transportation, Case No. BJ-426 (Fla. 1st DCA, August 12, 1986), and Tri-State Systems, Inc., v. Department of Transportation, Case No. BJ-428 (Fla. 1st DCA, September 11, 1986). The rationale of these cases is that unless the sign owner has made misrepresentations to the Department relative to the sign in question, the Department cannot change its long-standing interpretation of its authority to the detriment of the sign owner. It is required that the sign owner commit some affirmative violation beyond the mere compliance with a prior position from which the Department subsequently recedes. No such violation has been demonstrated, and the violation notice should be dismissed. The subject sign should be allowed to remain in place as a non- conforming sign.

RECOMMENDATION

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

RECOMMENDED:

That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign.

THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, 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 23rd day of October, 1986.

COPIES FURNISHED:

Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802-2151

Thomas Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

A. J. Spalla General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 85-3290T

PETERSON OUTDOOR ADVERTISING CORPORATION,

Respondent.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached.

Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION (Department) has filed Exceptions to Recommended Order which are considered and addressed in this order.

The Findings of Fact in the Recommended Order are adopted except as modified or supplemented herein. The Conclusions of Law are rejected. References to the transcript will be made by the use of the abbreviation "Tr" followed by the appropriate page number.

FINDINGS OF FACT

1. Finding of Fact No. 5 is supplemented to reflect that in the instant case, Respondent did not present evidence of application for a state sign permit. Further, lower echelon employees in the Fifth District of the Department of Transportation had not followed Department practice when making an independent decision that other signs owned by the Respondent would not need a permit even though the signs were within 660 feet of the right-of-way of federal-aid primary highways. (Tr: 8) Mr. Patrick D. Galvin, who served as State of Florida Outdoor Advertising Administrator for the Department of Transportation at the time of nearby sign permit applications, testified that the Department has never changed its interpretation of the law relating to the 660 foot controlled zone along federal-aid primary highways. (Tr: 24-40)

   
   

2. The Hearing Officer erred in Finding of Fact No. 8. Competent substantial evidence was introduced at the hearing that proved the subject sign is on the same side of the controlled highway and approximately 114 feet distant from a permitted sign,

   owned by National sign. (Tr: 72-73) Respondent's diagram depicts the placement of the signs on the same side of the controlled highway. (Exhibit No. 2) A second permitted sign structure, is depicted on the same side of the controlled highway as the subject sign.

   
   

3. The findings of fact of the Hearing Officer are supplemented to reflect testimony of Respondent's manager that having been in the business of outdoor advertising for more than

20 years, he was not misled by the outdoor advertising employees in the district when informed that a permit was not required for nearby signs. (Tr: 44-55) There is not sufficient evidence to support a finding that this experienced outdoor advertising company was misled into constructing its sign within 660 feet of the right-of-way of a controlled federal-aid primary highway without a permit.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Chapter 479, Florida Statutes charges the Florida Department of Transportation with responsibility for regulation of outdoor advertising signs adjacent to federal aid-primary highways.

   
   

2. Section 479.11(1), Florida Statutes, provides that no sign shall be erected, used, operated, or maintained:

   
   

   1. Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system except as provided in Section

      479.111 and 479.16. The exceptions are not applicable to the subject sign.

      
      

3. Chapter 479, Florida Statutes, requires a state sign permit for any sign erected within 660 feet of any portion of right of way of a federal-aid primary highway. 3M National Inc.,

247 So.2d 517 (Fla. 1st DCA 1971). The Department recognizes that an estoppel may arise against the state under exceptional circumstances. The Florida Supreme Court has expressed this policy as follows:

[I]t may be invoked even against the exercise of governmental powers where it is necessary to prevent manifest injustice and wrongs to private individuals; provided that the

restraint placed upon such governmental body to accomplish such Purpose does not interfere with the exercise of governmental power. (Emphasis added)

Trustees of Internal Improvement Fund v. C1aughton, 86 So.2d 775 (Fla. 1956).

The Department has no power to allow construction of a sign without a permit at a location contrary to law, nor could district employees allow such action. Since the employees performed unauthorized acts contrary to the law and Department policy in allowing the sign to be constructed without a permit, there can be no estoppel and the sign must be removed.

1. The Department rejects Conclusion of Law No. 6 of the Recommended Order because no "reconsideration of a prior erroneous interpretation of the statutes" by the Department has occurred. The Department's interpretation of the 660 foot controlled zone has always been as prescribed by statute. The fact that district employees made an erroneous interpretation and application of the law does not establish an inconsistency in the Department's position. Furthermore, the Florida Department of Transportation as a state agency has no authority to commit acts in contravention of statutory authority.

   
   

2. The Department has not receded from a prior inconsistent position but is merely adhering to a position that has always been the policy of the Department. Subsequent to legislative authorization, departmental policies are stated in administrative rules and regulations promulgated by the Department. At the time of the permit application in question, the Florida Administrative Code specifically stated departmental policy for signs along federal-aid highways:

   
   

   [E]rected on or after January 28, 1972, in commercial and industrial zoned and unzoned areas within 660 feet of Interstate and Federal-Aid Primary Highway Systems. . . .

   
   

   Rule 14-10.06, Florida Administrative Code. The District employees of the Department violated departmental policy as stated in Rule Chapter 14-10, F.A.C., as well as the Law of Florida when allowing erection of the sign without a permit.

   
   

3. In Florida it is long standing law that the doctrines of estoppel and waiver do not apply to transactions that are

   forbidden by statute or that arise from conduct resulting from a mistake of law. Godson v. Town of Surfside, 8 So.2d 497 (Fla.

   1942); North American Company v. Green, 120 So.2d 603 (Fla. 1959); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1978).

   
   

   In Conclusion of Law No. 6 of the Recommended Order, the cases cited by the Hearing Officer are not applicable to the instant case because of factual dissimilarities. The dispositive issue of the instant case is that the employee's mistake is a mistake of law; specifically Section 479.11(1), Florida Statutes. Further, in each case cited by the Hearing Officer the Department had brought actions to revoke permits, and the courts held that the Department could not revoke a permit for any cause not clearly within the ambit of its statutory authority. The instant case does not involve revocation of permits already issued, rather it involves an unpermitted sign. In each case cited by the Hearing Officer in the Recommended Order, the sign owner was in possession of a permit which the Department was authorized to issue and which was based on an erroneous interpretation of the applicable law at the time of issuance. There was no proof that Department employees violated concurrent statutes and rules as in the instant case. The courts held that no basis existed for revoking the permits due to a change in interpretation of the law by the Department. In Wainwright v. Department of Transportation, 488 So.2d 563 (Fla. 1st D.C.A. 1986) and C-Sand Company v. Department of Transportation, 494 So.2d 267 (Fla. 1st D.C.A. 1986), the change in interpretation revolved around whether Imperial Nurseries was a commercial activity. No such interpretation is present in the instant case. In Food-N-Fun v. Department of Transportation, 493 So.2d 24 (Fla. 1st D.C.A. 1966) and Tri-State Systems, Inc. v. Department of Transportation, 11 FLW 1946 (Fla.

   1st D.C.A., September 11, 1986), the departmental interpretation of a visible commercial activity was scrutinized. Similarly, in Tri-State Systems v. Department of Transportation, 492 So.2d 1164 (Fla. 1st D.C.A. 1986), interpretation of the term "principally used as a residence" was in question. No change in departmental policy or interpretation has taken place in the instant case; the action of the lower echelon employee did not follow applicable law or policy in effect at the time of Respondent's initial permit application. Consequently, the district employees by not properly following the statutory directive, acted outside their authority.

   
   

4. The Department rejects the Hearing Officer's recommendation that the subject sign should be allowed to remain in place as a nonconforming sign. A "nonconforming sign,"

pursuant to Section 479.01(12), Florida Statutes, is specifically defined as follows:

"Nonconforming sign" means a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and lighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions.

The subject sign was not lawfully erected and does not qualify for the classification of nonconforming sign. The Department is without authority to consider this a nonconforming sign.

Therefore, it is

ORDERED that the subject sign owned by Respondent, located approximately 124 feet east of the intersection of Kaley Avenue and U.S. 17/92/441 in Orange County, Florida, is an illegal sign and shall be removed within thirty (30) days of the date of this order.

DONE AND ORDERED this 21st day of January, 1987.

KAYE N. HENDERSON

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

The following information is required by law to be included in all Final Orders:

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statute, 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, MS 58, 605 Suwannee Street, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within thirty (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:

William B. Thomas, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Gerald S. Livingston, Esquire

P. O. Box 2151

Orlando, Florida 32802-2151

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32301

Jane S. Steele, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building, MS 22 Tallahassee, Florida 32301

Docket for Case No: 85-003290

Orders for Case No: 85-003290