STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5260T

) HERBERT SHAW, JR., TRUSTEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 25, 1991, and on December 23, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

For Respondent: Herbert J. Shaw, Jr., pro se

Post Office Box 507

Key Largo, Florida 33037 STATEMENT OF THE ISSUE

The issue presented is whether Respondent's outdoor advertising sign is located within Petitioner's right-of-way, and, if so, whether it must be removed.

PRELIMINARY STATEMENT

On July 26, 1990, Petitioner issued its Notice of Illegal Sign on Right of Way directed to Mr. and Mrs. Herbert J. Shaw, Sr., who timely requested a formal hearing regarding that Notice. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner presented the testimony of George S. Fisher, Alberto Villarreal, and James Ratcliff. Respondent Herbert Shaw, Jr., testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-15 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The sign at issue in this case was the subject of an earlier administrative hearing conducted in DOAH Case Nos. 83-1180T and 83-1181T on November 8, 1984. That consolidated proceeding arose as a result of a notice of illegal sign issued by the Department against Herbert J. Shaw, Sr., and Donna Shaw, his wife, alleging they were the owners of a sign located on the State's right-of-way.

   
   

2. The transcript of that formal hearing shows that the Department presented its case-in-chief and then rested. Those Respondents began presenting their evidence. A discussion was then held off the record, after which an announcement was made on the record that those Respondents had agreed with the Department's position, that they had withdrawn their request for an administrative hearing, and that the matter would be finally resolved in one of two ways: 1) those Respondents would purchase from the Department the amount of property required to eliminate any encroachment of the sign in question, or 2) the Department would remove the sign.

   
   

3. The proceeding was then adjourned, and an Order Closing Files was entered by the assigned Hearing Officer of the Division of Administrative Hearings. On December 13, 1984, a document entitled Final Order was entered by the Secretary of the Department that provided, in part, as follows:

   
   

   Because the formal requests for hearing made by the Respondents have been withdrawn, it is ordered that these cases be dismissed. It is further ordered that the outdoor advertising signs be removed pursuant to agreement of the parties (R-31) if within a reasonable amount of time an agreement between the parties cannot be reached as to a price and amount

   of property to be conveyed to the Respondents to eliminate the encroachment of the Respondent's signs on the Petitioner's

   right-of-way.

   
   

4. Thereafter, Mr. and Mrs. Shaw, Sr., and the Department did not pursue the purchase and sale of part of the right-of-way. Further, the Department did not remove the sign. It appears that none of the parties to that prior action treated the "Final Order" as a final order. Rather, 5 1/2 years later the Department issued a new Notice of Illegal Sign and advised Mr. and Mrs. Shaw, Sr., that they could request an administrative hearing to determine the merits of that Notice, which is the subject matter of this action.

   
   

5. At the beginning of the April 25, 1991, final hearing, Respondents Shaw, Sr., moved to have the style of the case amended to substitute Herbert J. Shaw, Jr., Trustee, the successor property owner, as the Respondent. Upon correction of the style, the Department made an ore tenus motion to dismiss, asserting that the 1984 final order was dispositive of all issues in the current case. The hearing was adjourned to permit Respondent to investigate that assertion and file a memorandum in response to the motion.

6. That motion was subsequently denied, and this cause was again noticed for final hearing. However, that hearing was cancelled to permit the parties to this cause to negotiate for the sale or lease of the Department's right-of-way to Respondent. Those negotiations proved unsuccessful, and the final hearing was re-scheduled for, and conducted on, December 23, 1992.

   
   

7. The sign in question is located in front of a restaurant which is located on Respondent's property in Key Largo, adjacent to State Road 5 (SR-5), which is also known as U.S. Highway 1. SR-5 is a part of the State Highway System.

   
   

8. The sign is within the Department's SR-5 right-of-way.

   
   

9. The outdoor advertising sign in question has been in the same location since 1973. Although it appears that a permit was obtained by Respondent or by his father from Monroe County, no permit for the sign was ever applied for or obtained from the Department.

   
   

10. In 1972 or 1973, Respondent or his father presented to the Department a survey in conjunction with an application for driveway permits. Although that survey noted in some fashion the location of the sign in question, the location of the sign was not specifically brought to the attention of the Department's employees reviewing the application for driveway permits.

    
    

11. Neither Respondent nor his father intentionally or knowingly placed the sign within the Department's right-of-way. It appears that the source of the error may have been a survey performed around 1972 which utilized a Florida Keys Aqueduct Authority plan sheet to determine the location of the Department's right-of-way. Those plan sheets have never been relied upon by the Department to show the location of its right-of-way, and no evidence was offered that the Department was the source of any erroneous information which may have been included on that plan sheet.

    
    

12. The Department itself has made no representation which would have suggested to Respondent or to his father that the outdoor advertising sign was not located within the Department's right-of-way.

    
    

13. On December 21, 1992, Petitioner filed its Notice of Intent to Seek Costs and Attorneys Fees. At the final hearing, the Department offered no evidence as to any costs or attorneys fees incurred by it, or the reasonableness thereof. Since the Department has thereby abandoned any claim to costs and attorneys fees pursuant to Rule 1.380(c), Rules of Civil Procedure, no findings regarding the entitlement thereto or the reasonableness thereof are made in this Recommended Order.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

15. Section 479.11(8), Florida Statutes, prohibits any outdoor advertising sign from being located on the right-of-way of any highway on the State Highway System. Similarly, Section 337.407(1)(a), Florida Statutes, prohibits any person from erecting any sign within the right-of-way limits of any road on the State Highway System, and Section 337.407(1)(b) provides that removal of signs from the right-of-way shall be in accordance with the provisions of Chapter 479.

    The sign in question is within the right-of-way of State Road 5, part of the State Highway System, and is in violation of Sections 479.11(8) and 337.407(1), Florida Statutes.

    
    

16. Respondent argues that the Department is estopped from requiring the removal of Respondent's sign because its location was shown on a survey which accompanied a driveway permit application in 1972 and also because the sign's existence was observed by Department employees for ten years before its location was questioned. Respondent's argument is without merit. Respondent is required to prove three elements in order to establish his claim of estoppel: (1) a representation by the Department as to a material fact that is contrary to the Department's later-asserted position; (2) Respondent's reliance on that representation; and (3) a change in position detrimental to Respondent caused by the representation and Respondent's reliance thereon. Dolphin Outdoor Advertising, Inc. vs. Department of Transportation, 582 So.2d 709 (Fla. 1st DCA 1991); Tri-State Systems, Inc. vs. Department of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987).

    
    

17. Respondent has failed to prove the elements necessary to establish a claim of estoppel. The record indicates that, prior to the construction of the sign, the Department made no representation to Respondent regarding the location of its right-of-way in the vicinity of Respondent's property. Instead, Respondent relied upon the opinion of his surveyor who may well have relied on information obtained from the Florida Keys Aqueduct Authority, unrelated to the Department. Since the Department made no representation to Respondent, Respondent could not have relied thereon and changed his position in reliance on such a representation.

    
    

18. The Department argues that this proceeding is controlled by the 1984 final order, which is, according to the Department, either res judicata and/or collateral estoppel. The Department's argument is not persuasive. It is true that the sign was the subject of a 1984 administrative hearing, that Respondent's predecessor in title and the Department settled that litigation during the final hearing, and that the settlement contemplated two mutually exclusive courses of action. Although the exact terms of the settlement announced on the record were paraphrased by the Department in its final order, that document does not have the characteristics of a final order. That document did not establish with finality the rights of the parties since it offered two mutually exclusive courses of action with no parameters requiring the accomplishment of either.

    
    

19. Further, the Department has not treated that order as a final order. Rather than simply removing the sign in question, an option under the 1984 final order, in 1990 the Department issued a new Notice of Illegal Sign on Right of Way, advising the owner of the right to contest that preliminary determination by requesting an administrative hearing, thereby requiring the Department to prove the truth of its assertions.

    
    

20. There was no adjudication of the legality or illegality of the sign in question in the 1983 administrative proceeding which culminated in the Department's 1984 final order. Moreover, the 1984 final order itself is not the subject of this proceeding. The Department has failed to cite any authority for its proposition that a Hearing Officer of the Division of Administrative Hearings has the authority to enforce a final order or to determine, as suggested by the Department, whether the conditions of the 1984 final order regarding the sign have now been fulfilled.

21. Similarly, the Department's argument that Respondent in this case has taken advantage of the 1984 final order by attempting to negotiate a sale or a lease of the right-of-way to resolve this matter is without merit. Both the Department and Respondent have a right and a duty to attempt to resolve disputes between them, specifically, this proceeding, prior to final adjudication. Additionally, neither the settlement entered into between the Department and Respondent's predecessors in title nor the 1984 final order contemplated the possibility of Respondent's leasing the land on which his outdoor advertising sign is located. The settlement announced on the record provided only that the owners could purchase from the Department the amount of property required to eliminate any encroachment of the sign, and the 1984 final order references the amount of property to be conveyed to eliminate the encroachment.

    
    

22. It is not necessary to determine the reasonableness of the price determined by the Department for either the sale or the lease of the right-of- way in front of Respondent's property. Settlement negotiations are neither admissible nor relevant in an administrative proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent's outdoor

advertising sign to be located within the Department's right-of-way and

requiring its removal.

DONE and ENTERED this 3rd day of March, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

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 3rd day of March, 1993.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5260T

1. Petitioner's proposed findings of fact numbered 1-3, 5, 6, 10, 15, and 16 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 4 has been rejected as not being supported by the weight of the competent evidence in this cause.

3. Petitioner's proposed findings of fact numbered 7-9 have been rejected as being unnecessary to the issues involved herein.

4. Petitioner's proposed findings of fact numbered 11-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

5. Respondent's proposed findings of fact numbered 1, 2, 4, and 6-9 have been rejected as not being supported by the weight of the competent evidence in this cause.

6. Respondent's proposed findings of fact numbered 3, 10, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

7. Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to the issues under consideration in this cause.

COPIES FURNISHED:

Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

Herbert J. Shaw, Jr.

Post Office Box 507

Key Largo, Florida 33037

Ben G. Watts, Secretary

Attn: Eleanor G. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

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: 90-005260

Orders for Case No: 90-005260