STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 90-1220T 90-3692T

) 90-1221T 90-3693T

THE ADALITE GROUP OF ) 90-3694T COMPANIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on June 21, 1990, in Miami, Florida.

APPEARANCES

FOR PETITIONER: Rivers Buford, Jr., Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

FOR RESPONDENT: Eric P. Littman, Esquire

Berley & Littman, P.A.

1428 Brickell Avenue, Suite 202

Miami, Florida 33131 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether the notices of violation issued by Petitioner for unpermitted signs in each of these consolidated proceedings should be upheld and the signs removed.

PRELIMINARY STATEMENT

Petitioner issued its notices of violation in Case Nos. 90-1220T and 90- 1221T on January 19, 1990. Notices of violation in Case Nos. 90-3693T and 90- 3694T were issued on February 23, 1990. The notice of violation in Case No. 90- 3692T was issued on May 29, 1990.

Respondent filed petitions for formal hearing concerning Case Nos. 90-1220T and 90-1221T on February 13, 1990. Petitions for formal hearing concerning Case Nos. 90-3693T and 90-3694T were served on Petitioner on March 7, 1990. The petition for formal hearing in Case No. 90-3692T was served on Petitioner on June 6, 1990.

Case Nos. 90-1220T and 90-1221T were referred to the Division of Administrative Hearings for assignment of a hearing officer by letter dated February 20, 1990, and assigned to Hearing Officer Dorsey on March 1, 1990. Case Nos. 90-3693T and 90-3694T were referred to the Division of Administrative Hearings for assignment of a hearing officer by letter dated June 13, 1990.

Case No. 90-3694T was referred to the Division of Administrative Hearings for assignment of a hearing officer on June 15, 1990. Case Nos. 90-3692T through 90-3694T were assigned to Hearing Officer Dorsey on June 15, 1990.

Case Nos. 90-1220T and 90-1221T were transferred to the undersigned on June 19, 1990. Case Nos. 90-3692T through 90-3694T were transferred to the undersigned on June 21, 1990. At the request of the parties, all five cases were consolidated and heard at the formal hearing pursuant to an order entered on the record at the formal hearing. A memorandum written Order Granting Consolidation was also entered on June 21, 1990.

At the formal hearing, Petitioner presented the testimony of one witness, and offered five exhibits for admission in evidence. Petitioner's Exhibits 1-4 were admitted in evidence without objection. Petitioner was granted leave to file its Exhibit 5 as a late filed exhibit which was filed on June 29, 1990, without objection.

Respondent presented the testimony of two witnesses and offered six exhibits for admission in evidence. Respondent's Exhibits 2 and 5 were admitted in evidence without objection. Respondent's Exhibits 1, 3, and 4 were admitted over objection. Respondent was granted leave to file Exhibit 6 as a late filed exhibit which was not filed at the time of entering this Recommended Order.

A transcript of the formal hearing was requested by Petitioner and filed with the undersigned on September 4, 1990. Proposed findings of fact and conclusions of law were timely filed by Petitioner on September 14, 1990, and by Respondent on October 8, 1990. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent owns a series of light poles that were erected at Respondent's expense at various locations within the city limits of the City of West Miami (the "City") pursuant to a written contract between Respondent and the City (the "contract"). Signs were affixed to eight light poles with the permission of the City pursuant to the contract. Respondent paid for the cost of construction and installation of the light poles. Respondent also pays operating costs for the light poles, including utility and insurance costs. The sign on each light pole is self illuminating. Respondent pays the City a percentage of advertising revenues derived from signs placed on the light poles.

   
   

2. Revenue from advertising is derived from signs attached to eight of the light poles erected by Respondent. 1/ Advertising revenues from signs to be affixed on all of the light poles erected by Respondent were projected by Respondent and the City in an amount sufficient to pay for the capital and operating costs of the light poles and provide both the City and Respondent with additional revenue.

   
   

3. The five signs at issue in this proceeding are not permanent. Each sign consists of a metal frame approximately three feet high and two feet wide. Each metal frame is attached to the light pole by bolts and clamps. Advertising is provided on heavy duty paper covered with a clear, mylar plastic panel.

   Advertising can be easily changed by sliding out an old advertising panel and inserting a new advertising panel. The metal frame can be detached from the light pole in a matter of minutes by removing the bolts and clamps.

   
   

4. The five signs at issue in this proceeding are attached to light poles erected on State Road 90 which is also U.S. 41, the Tamiami Trail, and Calle Ocho (the "Tamiami Trail"). 2/ The signs are located within 660 feet of the Tamiami Trail where it intersects Southwest 67th Avenue and Ludlam Road and where it intersects Southwest 57th Avenue and Red Road. The portion of the Tamiami Trail on which the five signs are located is designated by Petitioner as part of the federal-aid primary highway system. Some of the eight signs erected by Respondent are within a thousand feet of other permitted signs.

   
   

5. The five signs at issue in this proceeding were erected without first obtaining permits from Petitioner. Each sign and sign message is visible from Tamiami Trail. Each sign advertises business activities conducted at locations other than those where the signs are located.

   
   

6. None of the five signs at issue in this proceeding are official road signs or traffic control devices. The signs do not: indicate points of historical interest; advertise the sale or lease of the property upon which they are located; advertise only the name or nature of the business being conducted, or products, goods, or services that are sold, supplied, or distributed upon or in the premises upon which the signs are located. The signs were not in place prior to July 3, 1986. The signs are not otherwise within an area where signs are permitted by law.

   
   

7. Approximately three or four years ago, Eric Nadel, Respondent's president and founder, conferred on a number of occasions with Mr. William Kenney who is the Outdoor Advertising Coordinator for Petitioner's District 6. Mr. Nadel advised Mr. Kenney of the plan to put signs on light poles. Mr. Kenney told Mr. Nadel " . . . over and over again . . . " which locations on state roads in Dade County would require sign permits and which locations would not require sign permits.

   
   

8. Mr. Kenney provided Mr. Nadel with Petitioner's log of the state highway system in District 6, including Dade and Monroe counties. The log identified those roads designated by Petitioner as interstate highways ("FAI"), federal-aid urban highways ("FAU"), and federal-aid primary highways ("FAP"). Mr. Kenney also provided Mr. Nadel with copies of Chapter 479, Florida Statutes. 3/

   
   

9. The light poles and five signs at issue in this proceeding were erected and installed by Respondent subsequent to the time Mr. Nadel conferred with Mr. Kenney. Mr. Nadel was personally responsible for the erection of the light poles and signs. The signs do not carry sign permits and were erected without first obtaining sign permits.

   
   

10. After the lights and signs were installed, Mr. Nadel received a Notice to Show Cause for each of the five signs at issue in this proceeding. After a formal hearing was requested in this proceeding, Mr. Nadel met with representatives of the Petitioner including, George Fisher, Enforcement Supervisor, Stanley M. Cann, Director of Operations, and Barbara Hobbs, attorney. Mr. Nadel was accompanied by Mr. Alex Chavez, a commissioner for the City during the period when the contract was negotiated and executed between the

    City and Respondent. Discussions at the meeting between the parties included the potential violation of Chapter 86-308, Laws of Florida, which designates Calle Ocho as an historic roadway (the "Calle Ocho Statute"). 4/

    
    

11. An agreement of the parties was reached as a result of the meeting between Mr. Nadel and representatives of the Respondent. The agreement was memorialized in a letter dated March 13, 1990, from Mr. Fisher to Mr. Nadel.

    
    

12. Petitioner agreed to stay further removal action against existing unpermitted signs for 90 days from March 13, 1990. Respondent agreed not to install any additional signs until proper permits are issued for the existing unpermitted signs. Petitioner agreed to "process" Respondent's applications for sign permits if Respondent secured approval from the Division of Archives for all signs in the area covered by the Calle Ocho Statute. Approval of any applications for sign permits was expressly conditioned upon Respondent's compliance with the current provisions of Chapter 479, Florida Statutes. In the event Respondent was unable to secure approval from the Division of Archives for all signs in the area covered by the Calle Ocho Statute "and" comply with Petitioner's requirements for obtaining valid permits, Petitioner would remove the signs and bill Respondent for the costs incurred. The agreement of the parties expressly provided that the terms of the agreement did not waive any legal rights of the parties.

    
    

13. The Division of Archives determined that it had no jurisdiction over any of the signs at issue in this proceeding. After several preliminary letters, the Division of Archives notified Mr. Nadel of its determination by letter dated April 25, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. 5/ The parties were duly noticed for the formal hearing.

    
    

15. Petitioner has the burden of proof in this proceeding. Petitioner is the party attempting to show the affirmative of the position that Respondent's signs should be removed. Petitioner must show by a preponderance of the evidence that it is entitled to the relief requested in this proceeding. Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

16. Petitioner satisfied its burden of proof in this proceeding. Petitioner presented competent and substantial evidence that: Respondent did not apply for sign permits prior to erecting the five signs at issue in this proceeding; no permit tags were affixed to the signs; and that the signs were not within an area for which signs are exempt from applicable permitting requirements.

    
    

17. The five signs at issue in this proceeding are outdoor advertising signs within the meaning of Section 479.01(14), Florida Statutes. The signs are unpermitted signs located on a portion of the federal-aid primary highway system and within 660 feet of the nearest edge of the right-of-way of a federal-aid primary highway within the meaning of Sections 479.07(1) and 479.11(1), respectively.

18. Respondent is prohibited by Section 479.07(1), Florida Statutes, from erecting, operating, using, or maintaining signs on any portion of the federal- aid primary highway system without first obtaining sign permits unless the signs are excepted from the general permitting requirements by Section 479.16.

    Section 479.11 prohibits any sign within 660 feet of the nearest edge of the right-of-way of any portion of a federal-aid highway unless the signs are excepted from the general permitting requirements by either Sections 479.111 or 479.16.

    
    

19. Respondent's signs do not qualify for any exception in Section 479.16, Florida Statutes, including the exception for signs placed on benches, transit shelters, and waste receptacles within the meaning of Section 337.407(2). The signs are within 660 feet of the nearest edge of the right-of-way of a federal- aid primary highway for purposes of the exception in Section 479.11(2).

    However, no evidence was presented that Respondent's signs satisfied the other requirements for exemption under Section 479.111(2), including either the terms of the agreement between the state and the United States Department of Transportation or the applicable zoning for each sign location. See Section 479.01(20) (pertaining to the definition of an unzoned commercial or industrial area).

    
    

20. The five signs at issue in this proceeding are not intended for the temporary use of the right-of-way of a state transportation facility within the meaning of Section 337.406(1), Florida Statutes (Supp. 1990). 6/ No evidence was presented that the permission given by the City for Respondent to erect light poles and affix signs to the light poles was a permit of limited duration within the meaning of Section 337.406(1). Rather, the evidence indicated that the permission given by the City to Respondent was intended for the term of the contract.0

    
    

21. Petitioner is not estopped from enforcing applicable statutory requirements for sign permitting. Petitioner made no representation of a material fact contrary to a later asserted position. Respondent did not rely on such a representation. Finally, there was no change in position detrimental to Respondent. Cf. Tri-State Systems, Inc., v. Department of Transportation, 500 So.2d 212, 216 (Fla. 1st DCA 1986).

    
    

22. Respondent was specifically advised approximately three or four years ago of the statutory requirements for sign permits and the location of federal- aid primary highways in Dade County. Respondent erected the light poles and affixed signs to those light poles without first obtaining sign permits. Subsequent to receiving a Notice to Show Cause for each of the five signs at issue in this proceeding, Respondent reached an agreement with Petitioner. The terms of that agreement did not waive any statutory requirements for sign permits. Rather, the agreement expressly preserved the applicability of statutory sign permitting requirements.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's notices of violation be upheld, and the five

signs at issue in this proceeding be removed in accordance with applicable Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of March, 1991.

DANIEL MANRY

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 25th day of March, 1991.

ENDNOTES

1/ Signs have been placed on only eight light poles pursuant to an agreement between the parties pending the final order in this proceeding.

2/ The latter designation is a Spanish name used within the Spanish speaking community in the area. The Spanish name means "8th Street" which is another name by which the Tamiami Trail is known.

3/ The copies provided to Mr. Nadel three or four years ago presumably would have been copies of either Ch. 479, Fla. Stat. (1987), or Ch. 479, Fla. Stat. (Supp. 1986). The provisions of Ch. 479 applicable to this proceeding were adopted in 1984.

4/ The meeting took place on or before March 13, 1990. A formal hearing was requested prior to March 13, 1990, in all of these consolidated proceedings except Case No. 90-3692T. A formal hearing was requested in Case No. 90-3692T on June 6, 1990.

5/ All statutory and chapter references are to Florida Statutes (1989) as amended by Florida Statutes (Supp. 1990) unless otherwise provided.

6/ Sec. 337.406(1), Fla. Stat. (Supp. 1990), in relevant part, authorizes local government entities to issue permits of limited duration for the temporary use of the right-of-way of a state transportation facility for prohibited uses, including the display of advertising of any sort.

7/ No evidence of the term of the contract was presented.

8/ Even if the agreement had attempted to waive applicable statutory requirements, it may not have operated to estop Petitioner from applying such requirements. Petitioner is under a statutory duty to administer and enforce the provisions of Ch. 479, Fla. Stat., pursuant to Sec. 479.02. Estoppel does not operate against the state if Petitioner's action was caused by a mistake of law. Godson v. Town of Surfside, 8 So.2d 497 (Fla. 1942); Salz v. Department of Administration, 432 So.2d 1376 (Fla. 3rd DCA 1983); City of Miami Beach v.

Meiselman, 216 So.2d 774 (Fla. 3rd DCA 1968) cert. denied, 225 So.2d 533 (Fla.

1969).

APPENDIX

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Findings 1,4-6

2. Accepted in Findings 1, 3

3. Accepted in Findings 7-13

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee St., MS-58

Tallahassee, Florida 32399-0458

Eric P. Littman, Esquire Berley & Littman, P.A.

1428 Brickell Avenue, Suite 202

Miami, Florida 33131

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-001220

Orders for Case No: 90-001220