STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1898T

) DOLPHIN OUTDOOR ADVERTISING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 8, 1989 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

For Respondent: Scott Hill, Pro Se

1718 Golfside Drive

Winter Park, Florida 32972 PRELIMINARY STATEMENT

By letter dated March 17, 1989, the Department of Transportation, by its District Administrator Outdoor Advertising, advised Scott Hill, owner of Dolphin Outdoor Advertising that permit numbers AY 108-35 and AY 109-35 along I-4 100 feet west of Kraft Road in Polk County had been issued in error and were revoked. By letter dated March 27, 1989, Dolphin Outdoor Advertising requested a hearing to challenge the revocation of these permits and this hearing followed. At the hearing, Petitioner called two witnesses. Respondent called two witnesses and 13 exhibits were admitted into evidence.

The facts here involved are not in dispute. Accordingly proposed findings submitted by Petitioner are accepted even though not included herein.

STATEMENT OF THE ISSUES

1. Whether the application contains knowingly false or misleading information; or

   
   

2. Whether the Department is estopped to revoke the permits.

FINDINGS OF FACT

1. By application for outdoor advertising sign permits dated December 19, 1989 (Exhibit 1), Dolphin Outdoor Advertising requested permits for a sign to be located along I-4 in Polk County, Florida 100 feet west of Kraft Road. The application stated that the proposed sign was 1600 feet from the nearest permitted sign.

   
   

2. The District DOT sign inspector to whom this application was referred for processing checked the records for signs located within 1000 feet of the proposed location under the mistaken understanding that the minimum spacing requirement for signs along interstate highways was 1000 feet. After determining there were no valid conflicting signs, the inspector, who had been employed by the department approximately six months, approved the application and tags numbered AY 108-35 and AY 109-35 were issued on February 24, 1989.

   
   

3. In the interim, the applicant, upon learning that his application would be approved, contacted the landowner and entered into a lease for the property and on February 17, 1989, paid Florida Log and Timber $5000 for the first year's lease (Exhibit 11) on this property. The applicant also paid the finder of the site some $4300 for services and expenses in November, 1988. (Exhibits 7 and 8)

   
   

4. In mid-March 1989, while discussing these permits with her supervisor, the inspector who had issued the permit to Respondent learned that the required spacing between signs along interstate highways is 1500 feet instead of 1000 feet which is the minimum spacing along federal-aid primary highways.

   
   

5. By letter dated March 17, 1989 (Exhibit 3) the Department advised Respondent that permits AY 108-35 and AY 109-35 were issued in error because of a valid existing permit for a sign located 1056 feet west of Respondent's proposed sign. The permits were therefore stated to be no longer valid, and these proceedings followed.

   
   

6. Petitioner's letter of March 17, 1989 was received by Respondent before construction on the sign started but after Respondent received a building permit from Polk County dated February 27, 1989 at a cost to Respondent of $101.20.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 479.07(9)(a), Florida Statutes (1987), provides that a permit shall not be granted for any sign unless such sign is located at least 1500 feet from any other permitted sign on the same side of an interstate highway.

   
   

9. Respondent here contends that the Department is estopped to deny his application while the Department relies on Section 479.08 Florida Statutes which 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 ...

   Both reliances are misplaced.

   
   

10. At the time Respondent submitted its application there was no sign standing within 1500 feet of the proposed sign; accordingly, it cannot be said that Respondent knowingly and falsely alleged the proposed sign was 1600 feet from the nearest conflicting sign.

    
    

11. On the other hand, the law is clear that equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla. 1st DCA 1973). Another general rule is that the state cannot be estopped through mistaken statements of law. Florida Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977).

    
    

12. In order to demonstrate estoppel the following elements must be shown:

    (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. Greenhut Construction Co. v. Henry A. Knott, Inc. 247 So.2d

    517 (Fla. 1st DCA 1971).

    
    

13. Here Petitioner's agent made a mistake of law when she advised Respondent that the proposed location for the applied-for sign met the spacing requirements. There was no mistake of fact upon which Respondent relied to his detriment, although an argument could be made that the statement upon which Respondent relied to his detriment was a statement of fact, i.e., that the proposed location did not violate the spacing requirements. However, this misstatement was clearly based upon an erroneous understanding of the law and equitable estoppel will not be applied in such a case.

From the foregoing it is concluded that the permits AY 108-35 and AY 109-35 were issued to Dolphin Outdoor Advertising based upon a mistaken application of the law by the department's agent and the department is not equitably estopped to revoke the permits erroneously issued.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued revoking permits AY 108-35 and AY

109-35 issued to Dolphin Outdoor Advertising for a sign along I-4 100 feet west of Kraft Road in Polk County.

DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Scott Hill, Pro Se 1718 Golfside Drive

Winter Park, Florida 32972

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 89-1898T

DOLPHIN OUTDOOR ADVERTISING,

Respondent.

/

FINAL ORDER

The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Respondent, Dolphin Outdoor Advertising, has filed exceptions to the Recommended Order which are considered and addressed below.

Respondent's motion for oral argument upon its exceptions to the Recommended Order is denied.

The Findings of Fact and Conclusions of Law set forth in the Recommended Order are considered correct and are incorporated herein as part of this Final Order.

Respondent first takes exception to the Hearing Officer's alleged failure to make a finding of fact regarding representations made by Department employee Cathy Murphy. This exception is rejected because Respondent's proposed finding was substantially covered in the Hearing Officer's Findings of Fact 2 and 3.

Moreover, Respondent's exception must be rejected because it in effect, amounts to a request that the Department impermissibly substitute factual findings for those of the Hearing Officer. See B. B. v. Department of Health and Rehabilitative Services, 14 F.L.W. 1129 (Fla. 3d DCA May 9, 1989).

Similarly, Respondent's exceptions 2 and 3 are requests that the Department augment the Hearing Officer's Findings of Fact. The Department cannot take such action and Respondent's exceptions 2 and 3 are therefore rejected. B. B. v.

Department of Health and Rehabilitative Services, supra. Additionally, Respondent's exceptions 2 and 3 should be rejected because the proposed factual findings are essentially legal conclusions.

In exception 4, Respondent challenges the Hearing Officer's Conclusion of Law No. 5, contending that the Hearing Officer erred in concluding that certain statements made by Cathy Murphy were mistaken statements of law. Conclusion of Law No. 5 contains statements of black letter law and citations to authority.

It does not address any statements made by Cathy Murphy. Consequently, Respondent's exception 4 is rejected.

Finally, Respondent, in exceptions 5 and 6, takes issue with the Hearing Officer's conclusion that Cathy Murphy's misstatement was based upon an erroneous understanding of the law which in turn would not support application of the doctrine of equitable estoppel to this case. The underlying factual premises upon which the Hearing Officer's conclusion is based are supported by competent substantial evidence and the legal conclusion comports with the Department's interpretation of controlling authority. Respondent's exceptions 5 and 6 are rejected. Tuveson v. Florida Governor's Council, 495 So.2d 790 (Fla. 1st DC 1986); Heifetz . Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

Accordingly, the Hearing Officer's recommendation is adopted and it is ORDERED that outdoor advertising sign permits AY 108-35 and AY 109-35,

issued to Dolphin Outdoor Advertising, be revoked. DONE AND ORDERED this 7th day of August, 1989.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

K. N. Ayers, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1050

Daniel C. Brown, Esquire

Katz, Kutter, Haigler, Alderman, Eaton, Davis & Marks, P.A.

Post Office Box 1855 Tallahassee, Florida 32302-1877

Scott Hill, Pro Se 1718 Golf Side Drive

Winter Park, Florida 32972

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Thomas F. Bateman III, Esquire General Counsel

Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of an agency final order may be pursued in accordance with Section 120.68, Florida Statutes, 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, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 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.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DOLPHIN OUTDOOR ADVERTISING, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

v. CASE NO.: 89-2389

DOAH CASE NO. 89-1898T

DEPARTMENT OF TRANSPORTATI0N,

Appellee.

/ Opinion filed June 26, 1991.

An Appeal from an order of the Department of Transportation.

Daniel C. Brown of Katz, Kutter, Haigler, Alderman, Eaton, Davis & Marks, P.A., Tallahassee, for Appellant.

Gregory G. Costas, Appellate Attorney, Thomas J. Bateman, III, General Counsel for Department of Transportation, Tallahassee, for Appellee.

PER CURIAM.

Dolphin Outdoor Advertising (Dolphin) appeals a final order of the Department of Transportation (DOT) which revoked duly issued permits for an outdoor advertising sign located along Interstate 4 in Polk County. We reverse.

Dolphin applied for permits to erect a monopole sign which would support a two-sided billboard. Dolphin intended to lease the property where it proposed to erect the sign. Dolphin indicated on its application that the nearest sign from its proposed site was 1600 feet away. The DOT sign inspector assigned to Dolphin's application reviewed DOT records to ascertain whether Dolphin's proposed site complied with the statutory spacing requirements. This inspector erroneously thought that section 479.07(9)(a), Florida Statutes (1987), requires signs along interstate highways to be 1,000 feet apart. Actually, that section requires signs to be spaced 1,500 feet apart. Dolphin's application was approved and two permits were issued on February 24, 1989.

Dolphin had made the final payment on the first year's installment on the ten year lease on February 17, 1989. The president of Dolphin testified that this payment was made after assurances by the DOT inspector that the application was going to be approved. Dolphin paid $101.20 on February 27, 1989, for a Polk County building permit, and a three year advertising contract was executed.

Subsequent to the issuance of the permits, the DOT inspector realized she had applied the wrong spacing standard. Whereas DOT had originally concluded that Dolphin's proposed sign location did not conflict with any other sign, DOT later realized Dolphin's sign was within 1,066 feet of the nearest permitted sign. Because no sign had been erected at this permitted site when Dolphin submitted its application, Dolphin had no actual knowledge of the conflict. By letter dated March 17, 1989, DOT advised Dolphin that its permits were not valid as they had been issued in error.

Dolphin requested and received a section 120.57(1) hearing. At the hearing, DOT argued that it had the authority to revoke the permits under section 479.08, Florida Statutes, which provides that the department may revoke any permit granted under Chapter 479 when it is determined that the application for the permit contained "knowingly false or misleading information "

The hearing officer rejected this contention. Because no sign had yet been placed at the conflicting site, Dolphin had no knowledge that the conflict in fact existed, and so Dolphin could not have "knowingly and falsely" alleged on its application that the nearest sign was 1600 feet away. Therefore, DOT's reliance on section 479.08 was misplaced.

However, the hearing officer also rejected Dolphin's argument that estoppel should apply against DOT so as to preclude revocation of the permits. Instead, the hearing officer ruled that DOT's misunderstanding of the statutory spacing requirement was one of law, not fact, and, as the hearing officer correctly observed, estoppel will not be applied when there has been a mistake of law.

See, for example, Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1978); Nelson Richard Advertising v. Dept. of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987). Because the permits were issued upon a mistaken application of the law by DOT's agent and because DOT is not equitably estopped to revoke permits erroneously issued, the hearing officer recommended that the permits be revoked. In its final order, DOT accepted the findings of fact and conclusions of law made by the hearing officer.

The doctrine of equitable estoppel may be applied against the state only rarely and under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla. 1959). This court has considered other cases in which an outdoor sign permit holder has sought to have DOT estopped from revoking sign permits. See, T & L Management v. Dept. of Transportation, 497 So.2d 685 (Fla. 1st DCA 1986); Chipley Motel v. Dept. of Transportation, 498 So.2d 1357 (Fla.

1st DCA 1986), app. dismissed, 503 So.2d 326 (Fla. 1987); and Tri-State Systems, Inc. v. Dept. of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987). This court observed in Tri-State that any decision regarding the application of equitable estoppel depends upon properly made findings of fact as to each of the three elements of estoppel:

(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. 500 So.2d at 215-216. As noted, the hearing officer specifically found DOT's understanding about the statutory spacing requirements to be a representation of law rather than fact.

Dolphin has argued on appeal that DOT never made a representation as to the actual spacing requirements of the relevant statute. Instead, what DOT's agent represented to Dolphin and what Dolphin detrimentally relied upon, according to Dolphin, was the agent's representation that the application for the sign permit was "fine." In this respect, Dolphin argues the instant case is analogous to Kuge v. State, Department of Administration, 449 So.2d 389 (Fla. 3d DCA 1984).

In Kuge, a state employee inquired at the Department of Administration, Division of Retirement about her retirement status. The agency responded by memorandum that she had 9.58 years of creditable retirement service; and, based on this representation, the state employee planned her retirement. In fact, the employee had obtained only 9.33 years of service. Therefore, when she later left state employment, it was determined that she had retired too early to qualify for retirement benefits. The employee sought and received an administrative hearing, but the denial of her retirement benefits was affirmed. On review, the district court of appeal found that the memorandum of the agency contained an erroneous representation of fact, and not law, and because the employee relied upon the representation resulting in a change of position to her detriment, the court found that estoppel would lie. In so holding, the Kuge court observed that the agency's "representations were based on a misunderstanding of the law [regarding calculation of retirement credit], but this does not convert the factual representations into legal representations."

449 So.2d at 392.

We find Kuge, indistinguishable from the case before us. Here, the hearing officer found in his conclusions of law (which were adopted by DOT), that DOT's agent made "a mistake of law" when she advised Dolphin "that the proposed location for the applied-for sign met the spacing requirements." While finding no mistake of fact upon which Dolphin relied to its detriment, the hearing officer acknowledged that "an argument could be made that the statement upon which Respondent relied to his [sic] detriment was a statement of fact, i.e., that the proposed location did not violate the spacing requirements." However, the hearing officer's order continues, "this misstatement was clearly based upon an erroneous understanding of the law and equitable estoppel will not be applied in such a case." We disagree with the hearing officer's conclusions on this issue.

Applying the same reasoning and analysis as did the court in Kuge, we conclude that the representation by DOT's agent that the proposed location met the spacing requirements was based upon a misunderstanding of the law, but, as in Kuge, "this does not convert the factual representations into legal representations." 449 So.2d at 392.

The order appealed is therefore REVERSED.

SMITH AND JOANOS, JJ., CONCUR; and WENTWORTH, S.J., SPECIALLY CONCURS WITH WRITTEN OPINION.

WENTWORTH, concurring specially.

I agree with reversal because the dispositive issue is simply that of correcting the erroneous characterization of the mistaken DOT representation as one of law. Although the recommended order, adopted by DOT, contains no clear finding of fact as to the agency representation, it does state as a conclusion of law that the agent "advised Respondent that the proposed location . . . met the spacing requirements" (e.s.). The emphasized words do not appear to have been used by any witness, but the DOT inspector did indicate that in the process

of site inspection she undertook to check and convey information on the existence of any "hidden permit, which is a tag that's been permitted but the sign was not up." In that context the necessary fact representation is implicit in the testimony that Dolphin "got a verbal go-ahead that she had checked it; everything was fine." In other circumstances, however, the same statement might convey only a mistaken representation of law.

Docket for Case No: 89-001898

Orders for Case No: 89-001898