STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-4938T

) FIRST COAST OUTDOOR ADVERTISING, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 18, 1992, in St. Augustine, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Sexton, Assistant General Counsel

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: John Michael Traynor, Esquire

28 Cordova Street

St. Augustine, Florida 32084 STATEMENT OF THE ISSUE

Whether or not the May 2, 1991 Department of Transportation stop work order may be enforced to require removal and relocation of a permitted sign allegedly erected contrary to Rule 14-10.009 F.A.C. and Section 479.02(1) F.S.

PRELIMINARY STATEMENT

This cause arose from a May 2, 1991 notice issued to Respondent First Coast Outdoor Advertising (First Coast) by the Department of Transportation (DOT) asserting that a sign erected by Respondent had been erected in violation of Rule 14-10.009 F.A.C. and was subject to removal pursuant to Section 479.105(2)(a) F.S.

Respondent requested a formal administrative hearing and the matter was referred to the Division of Administrative Hearings.

In response to an order entered August 28, 1991, the parties filed a prehearing stipulation which has been incorporated in this recommended order to the degree it is appropriate. Although the parties stipulated to a number of

factual and legal issues, the only material issue of law subject to resolution in this forum is that set out under "Statement of the Issue," supra. 1/

Other matters raised by the parties in their prehearing stipulation or in the course of formal hearing were ruled upon at formal hearing as follows:

1. Respondent raised the issue of the unconstitutionality of the agency rule and state statute involved. The undersigned ruled that, unlike Article V judges, hearing officers of the Division of Administrative Hearings have no jurisdiction, power, or authority to decide the constitutionality vel non of statutes. The undersigned also ruled that existing rules may be declared invalid only in proceedings commenced pursuant to, and in accordance with, the provisions of Section 120.56 F.S. The undersigned further ruled orally that because the DOT rule in question is an existing rule which, absent an appropriate rule challenge, is presumed duly promulgated and valid, and because no petition to declare the rule invalid had been filed directly with the Division of Administrative Hearings pursuant to Section 120.56 F.S., the agency's rule could not be determined to be invalid in the instant proceeding. This instant proceeding was commenced by a petition filed with DOT pursuant to Section 120.57(1) F.S. However, it was ordered that the rule was subject to interpretation in the instant proceeding.

   
   

2. The Respondent's assertion that DOT's actions would result in an "unjust taking" if a recommendation were entered herein to uphold the cease and desist order was reserved for discussion only as necessary in this recommended order.

   
   

3. Respondent's oral motion to dismiss made at the close of DOT's case in chief was taken under advisement for resolution in the course of this recommended order.

The parties had 12 joint exhibits admitted in evidence. DOT presented the oral testimony of Thomas Brown, Helen Hession, and Bartley Robert (Bob) Burch. Respondent presented the oral testimony of Charles Usina and Robert Harry.

A transcript of the proceedings was filed in due course. All timely-filed proposed findings of fact have been considered and are specifically ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Interstate Highway 95 (I-95) and State Road 16 (SR 16) intersect in St. Johns County, Florida. There is an interchange located at the intersection of

   I-95 and SR 16 in St. Johns County. The sign in question is the northernmost of three signs constructed by Respondent on properly zoned private property owned by Charles Usina located southwest of the above interchange and adjacent to I- 95, fifteen feet from the DOT right of way. There is an entrance ramp southwest of the interchange that permits traffic traveling eastbound on SR 16 to enter the southbound lane of I-95.

   
   

2. Prior to submitting sign applications to DOT, Respondent's President, Robert Harry, met with Helen Hession at the interchange. Ms. Hession is a Property and Outdoor Advertising Inspector employed by DOT in its District II. Mr. Harry requested the meeting with Ms. Hession to obtain her interpretation of where to begin measuring along the southbound lane of I-95 under DOT's "500 foot rule." At that meeting, Ms. Hession gave her interpretation as to how to locate

   the point of beginning measurement according to Rule 14-10.009 F.A.C. as enforced by DOT through Section 479.02(1) F.S.

   
   

3. The relevant language of Rule 14-10.009 F.A.C. provides:

   
   

   Outside incorporated towns and cities, no structure may be located adjacent or within five hundred (500) feet of an interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way, or an interstate highway.

   
   

4. Mr. Harry had been in the business of outdoor advertising for many years, but this was his first experience with this type of measurement using the "500 foot rule" at this type of interchange. Mr. Usina was present with Mr. Harry and Ms. Hession for their pre-application meeting on January 19, 1991. At that time, Ms. Hession indicated the point of beginning for them to measure from in order to utilize the "500 foot rule."

   
   

5. Ms. Hession testified consistently and credibly that she had told Mr. Harry and Mr. Usina that the point to begin measuring the 500 feet pursuant to the rule was at the southern tip of the "gore" located between I-95 and the southbound entrance from SR 16. The "gore" is an asphalt triangle marked with white lines that is widest at the northern end where vegetation grows between the southbound lane and the entrance. According to her testimony, Ms. Hession stood in the middle of the gore, facing south, and stated that, under the rule, the measurement should start at the point of the triangle. Ms. Hession illustrated her formal hearing testimony by marking "Point 3" on Joint Exhibit 12, a demonstrative sketch of the interchange and environs, to show the location she had indicated to Mr. Harry and Mr. Usina as the point of beginning.

   
   

6. Mr. Harry and Mr. Usina testified equally credibly and consistently that during their pre-application meeting, Ms. Hession had indicated to them that the point to begin measuring was located at the northern end of the gore, or the place at which the vegetation and the asphalt met. For purposes of illustration, they identified the point that Ms. Hession indicated during their pre-application meeting as being "Point 2" on Joint Exhibit 12.

   
   

7. While it is clear that Mr. Harry was not seeking Ms. Hession's personal interpretation of "the 500 foot rule," but was seeking the agency's interpretation of the rule it has promulgated and is charged with administering, it is equally clear that Ms. Hession and Mr. Harry never had a meeting of the minds on the exact location that she told him to begin his measurements. Ms. Hession was in her bare feet and unwilling to move around with Mr. Harry and Mr. Usina on the roadway during part of their meeting, and Mr. Harry and Mr. Usina are not entirely consistent as to where everyone was standing at crucial times during their discussion. It is easy to see how a misunderstanding occurred.

   
   

8. Mr. Harry made the measurements for Respondent's sign permit application beginning at "Point 2," the northern end of the gore where the end of the asphalt gore meets the vegetation between the entrance and the highway. This location is over 400 feet closer to the interchange than the point Ms. Hession testified she had indicated to Mr. Harry.

9. On January 29, 1991, Respondent filed an application for a DOT permit to construct the sign in question and for the two other signs. The application for the sign in question stated that the sign would be located on private property adjacent to the southbound lane of I-95, fifteen feet (perpendicular measurement) from the right of way and .15 miles from the nearest intersection. Simple arithmetic shows .15 miles equals 792 feet.

   
   

10. The sign in question was not actually in existence at the time the application was reviewed and approved. For purposes of DOT review and approval of Respondent's permit application, Mr. Harry had placed stakes bearing the FCOA initials on the DOT right of way at locations parallel to where he intended to erect the signs on Mr. Usina's property. 2/

    
    

11. When reviewing Respondent's application prior to permit approval, Ms. Hession did not rely on the location stated in the application, (.15 miles from nearest intersection), but made her own on-site measurements. She measured using a Distance Measuring Instrument (DMI) mounted in Bartley (Bob) Burch's truck. Mr. Burch drove the truck and observed the stakes but did not participate in making the measurements. Use of the applicant's stakes and DOT's own measurements is standard operating procedure for DOT in reviewing/approving permit applications because sometimes the applicants' measurements as made or as stated on the application are incorrect. Use of the DMI is also standard operating procedure for DOT in this process. The DMI in question was calibrated for accuracy by Mr. Burch immediately prior to Ms. Hession taking the measurements.

    
    

12. During her pre-approval application review, Ms. Hession measured the distances between stakes bearing FCOA initials and the distance of the first stake from the SR 16 overpass. She also used the southern tip of the gore ("Point 3") as a reference point when taking her measurements. She measured to the first stake from SR 16 and found the first stake to be .3 miles distant therefrom. (TR-44-45, 53) She reset the DMI at zero and then measured 1500 feet south to the next stake; again reset the DMI at zero and measured 1500 feet south to the third and final FCOA stake.

    
    

13. During her pre-approval application review, Ms. Hession found the first FCOA stake to be in a location consistent with her understanding that "Point 3" was the correct point of beginning for applying the "500 foot rule." The first stake was 500 feet south of the tip of the gore ("Point 3").

    
    

14. Using the measurements obtained with the DMI during the pre-approval application review, Ms. Hession approved Respondent's application for a sign .3 miles (not the applied-for .15 miles) south of SR 16, the intersection of SR 16 and I-95. Simple arithmetic shows .3 miles equals 1584 feet.

    
    

15. Subsequent to the pre-application meeting with Ms. Hession, but prior to the issuance of the DOT sign permits/tags, Respondent entered into a ground lease agreement with Mr. Usina 3/ and also entered into outdoor advertising lease agreements for the sign (two sign faces) involved here. 4/ These advertising lease agreements were later voided due to a stop work order issued by DOT (See Finding of Fact 19). Respondent has subsequently mitigated some of its loss therefrom by entering into other leases at lower figures.

    
    

16. Respondent's six applications for outdoor advertising sign permits were approved by Ms. Hession and processed through DOT's main office in Tallahassee. Permits and tags were issued by DOT on February 22, 1991. Issuance of these permits and tags constitutes final agency approval of the

    application in question. The permits authorized the erection of three signs in the vicinity of the I-95 and SR 16 interchange at .30, .58, and .86 miles respectively south of the SR 16 intersection. Respondent has never challenged the fact that each of these signs was permitted significantly further south and further away from the intersection than each of the locations applied for: .15,

    .43, and .72 miles, respectively. Respondent has never protested that the permit issued for the sign in question was not for .15 miles (792 feet) from the intersection, but was for .3 miles (1584 feet) from the intersection.

    Respondent timely and properly affixed the permit tags to the three monopole structures, as they were constructed.

    
    

17. After the permits/tags were issued, Respondent borrowed $25,000 to erect the monopole/sign and Mr. Harry obligated himself to repay that loan with interest.

    
    

18. Respondent began construction of the sign in question after February 22, 1991.

    
    

19. After a monopole support for the sign in question was installed, two of Respondent's business competitors notified Tom Brown, DOT's Outdoor Advertising Administrator for District II and supervisor of Ms. Hession and Mr. Burch, that Respondent's northernmost sign in this location had been placed too close to the intersection/interchange. Mr. Brown reacted by issuing the stop work order on construction on May 2, 1991, which was posted on Respondent's monopole. The stop work order stated that the structure was within 500 feet of an intersection, in violation of Rule 10-14.009 F.A.C., as enforced through Section 479.02(1) F.S. Mr. Brown subsequently notified Mr. Harry by letter that pursuant to the authority of 479.105(1)(a), the stop work order had been issued because of an alleged violation of Chapter 14-10.009(B) SPACING OF SIGNS (2)(b)

    F.A.C. which is enforced through Florida Statutes Chapter 479.02(1).

    
    

20. Respondent completed the sign in question after the stop work order was issued.

    
    

21. Subsequent to her approval of the sign permits, Ms. Hession was instructed by Mr. Tom Brown that her interpretation of the agency rule was incorrect and that the proper place to have begun measuring for purposes of the "500 foot rule" was where the outside edge of the interchange entrance lane disappeared into the outside edge of the through lane of I-95. Bob Burch, a District II Outdoor Advertising Inspector of equivalent rank with Ms. Hession, testified that he interpreted the rule in a manner identical to Mr. Brown's interpretation. For purposes of illustration, this location is marked as "Point 1" on Joint Exhibit 12.

    
    

22. The testimony of Tom Brown as to why his interpretation should be considered the agency's interpretation of the rule is sketchy but together with the corroboration of Bob Burch that this interpretation has been the standard application, it is accepted that DOT, as an agency, has interpreted the "500 foot rule" language to mean that a sign may not be located within 500 feet of the point at which the outside edge of an entrance disappears into the outside edge of a through lane on an interstate highway. This interpretation ("Point 1," for purposes of the instant case) is also consistent with the language of the rule and is the most reasonable reading of that language.

    
    

23. "Point 2" is not consistent with the language of the rule.

24. "Point 1," Mr. Brown's and Mr. Burch's interpretation of the rule's point of beginning, is furthest from the intersection, at the beginning of the through lane for I-95. "Point 3," Ms. Hession's original erroneous interpretation, is next furthest from the intersection, at the tip of the gore. "Point 2," Mr. Harry's mis-understanding of Ms. Hession's erroneous interpretation is closest to the intersection, where the gore meets the vegetation. Naturally, any distance measured from Mr. Harry's understanding of the point of beginning would be further north than, and closer to, the interchange than would be locations measured from either of the other two points.

    
    

25. Immediately after the stop work order was issued, the sign in question was inspected and measured by Ms. Hession. This time she measured its location using a 100-foot tape. She used SR 16 and its overpass as her starting point. SR 16 and its overpass are permanent markers. (TR-47-49) She and Mr. Burch found that the monopole in question had been erected several hundred feet north of the location at which they had previously found Respondent's first stake.

    The monopole as constructed was less than 100 feet south of the tip of the gore, "Point 3," and north of "Point 1". According to these after-the-fact measurements, Respondent's erected monopole is not 500 feet or more south of either "Point 3" or "Point 1" and it is not located .3 miles from SR 16, as specified in the permit or even .3 miles from Points 1, 2, or 3.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57 (1), F.S,

    
    

27. The statute governing denial or revocation of sign permits is Section

    479.08 F.S. The statute governing sign removal following permit revocation is Section 479.10 F.S. Section 479.105(2)(a) F.S. applies to signs under construction without a permit.

    
    

28. At the close of DOT's case in chief, Respondent made an oral motion to dismiss. As grounds for its motion, Respondent argued that Respondent possesses permits for the sign in question and that DOT has not initiated a revocation action under Section 479.08 F.S. Respondent's argument that DOT did not cite Section 479.08 F.S. is to the effect that the agency's failure to cite the specific statute precludes revocation of Respondent's permit through this administrative procedure.

    
    

29. Respondent further asserted that DOT took the position in T & L Management, Inc. v. Department of Transportation, 497 So.2d 685 (Fla. 1st DCA 1986), that the appropriate process for unbuilt signs was permit revocation, and in the instant proceeding DOT has sought to remove an existing sign without the procedural safeguards of Section 479.08 F.S. Be that as it may, the only "safeguards" specified in that statute, covering permit revocation, are (1) Permit the Respondent 30 days to correct false information on the application;

    1. Permit the Respondent 30 days to correct the condition of the sign and/or to request a formal administrative hearing. Section 479.10 F.S., covering sign removal, provides for removal of the sign by the permittee within 30 days after the date of revocation of the permit and that if the permittee fails to timely do so, DOT may remove the sign without liability.

       
       

30. Herein, there is no suggestion Respondent provided false information on its application, and Respondent has been granted its formal administrative hearing. DOT's case in chief showed that Respondent's sign was not erected at

    the location authorized by the specific language of the permit, ".3 miles south of the intersection of SR 16." Consequently, revocation of the permit is properly at issue in this case. The monopole was up when the stop work order was entered. Thereafter, Respondent went forward with the remainder of sign construction and did not correct the spacing. Respondent requested a formal administrative hearing and that safeguard is encompassed in the present proceeding. It was clear when DOT issued its stop work notice that DOT was seeking compliance with the spacing requirements of Rule 14-10.009 F.A.C., pursuant to Section 479.02(1) F.S. Also, regardless of whether the sign is, or is not, physically at the location authorized by the permit, the permit itself has consistently been at issue herein. In fact, it is clear that Respondent recognized that DOT has been seeking revocation of its permit and removal of the sign because the estoppel issue, which was included in the Prehearing Stipulation at the request of Respondent, specifically addressed the revocation of the permit, not just removal of the sign:

    
    

    Whether the Department is estopped from challenging the sign's permit and estopped further from seeking revocation of the permit and removal of the sign. [Emphasis supplied]

    
    

    Further, Respondent's basic position in this case, as reflected in the Prehearing Statement, states that,

    
    

    Department should be estopped from seeking a revocation of the permit and removal of the sign.

    
    

    By these statements, Respondent has recognized that DOT is seeking revocation of the permit for the sign and removal of the sign itself. By this instant proceeding, Respondent has been afforded all the "safeguards" of each statute.

    See, by analogy, Nelson v. Richard Advertising v. Department of Transportation,

    513 So.2d 181 (Fla. 1st DCA 1987). In Nelson, all three notices showed DOT had authority to revoke and remove the signs, but only two notices informed appellant of DOT's authority to revoke the sign permits.

    
    

31. Respondent's motion to dismiss is denied.

    
    

32. With regard to the merits of the case, agency determinations with regard to a statute's interpretation will receive great deference in the absence of clear error or conflict with legislative intent. McDonald's Corp. v. Department of Transportation, 535 So.2d 323 (Fla. 2d DCA 1988); Tri State Systems, Inc. v. Department of Transportation, 491 So.2d 1192, 1193 (Fla. 1st DCA 1986) An agency's interpretation of its own rule is likewise entitled to great weight. Mr. Brown's and Mr. Burch's interpretation of the point of beginning under "the 500 foot rule" has been accepted as the agency's interpretation. This is "Point 1" on Exhibit 12. The sign has been erected less than 500 feet from that point.

    
    

33. Respondent claims that DOT is estopped to assert that the sign in question is misplaced less than 500 feet from the interchange because the agency is bound by the mistaken factual representation of Ms. Hession as to the point of beginning for measurements under the "500 foot rule", which representation Ms. Hession made to Respondent at their pre-application interview on January 19, 1991, thereby bringing this case within the purview of Dolphin Outdoor Advertising v. Department of Transportation, 582 So.2d 7009 (Fla. DCA 1991).

34. However, it appears that Respondent measured 500 feet from "Point 2" to put out his stakes in reliance upon his understanding of Ms. Hession's instructions, and then, believing he was applying for a sign location .15 miles (792 feet) south of "Point 2", he sent in an application requesting a permit specifying ".15 miles south of the intersection". Ms. Hession reviewed Respondent's stakes as she found them on the right of way, which locations may or may not have been in the same locations where they were placed by Respondent. She approved his first staked location as .3 miles south of the SR 16 overpass/intersection of SR 16 and I-95, which stake was also at least 500 feet south of Point 3 (the point of beginning as Ms. Hession had erroneously believed to be consistent with the agency's interpretation of its rule and as she thought she had conveyed it to Mr. Harry). The DOT central office approved the permit at .3 miles south of the intersection. Although the sign as erected is .15 miles south of Point 2, the sign as erected also is less than .3 miles south of either the intersection at the overpass or Points 1, 2, or 3 per accurate measurements of Ms. Hession taken after the monopole was erected. As such, the sign was erected contrary to any possible reading of the permit. Therefore, this case is distinguishable from those cases cited by Respondent. The pole/sign as erected is also less than 500 feet from the agency's true interpretation of its own rule's point of beginning. In fact, it is approximately 100 feet closer to the interchange than is the agency's point of beginning, "Point 1".

    
    

35. The burden to establish an estoppel is upon the party asserting it. To establish an estoppel herein, Respondent would have to show (a) that a representation as to material fact (Hession's interpretation of the point of beginning, "Point 3") is contrary to a later position asserted by the agency (Brown's and Burch's interpretation of the point of beginning, "Point 1"); (b) Respondent's reliance on that first representation (Hession's representation) of material fact; and (c) a change in Respondent's position detrimental to Respondent caused by the agency's representation and reliance. See, Dolphin Outdoor Advertising v. Department of Transportation, supra.; Kuge v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3d DCA 1984).

    
    

36. The three elements necessary to form an estoppel have not been shown here because the evidence supports a finding that Ms. Hession and Mr. Harry never had a meeting of the minds as to which location ("Point 3" or "Point 2") was the point of beginning for purposes of application of the rule. Consequently, this case does not present a fact situation nor an evidentiary situation where there was no competent rebuttal of Respondent's estoppel evidence such as would correspond with the situation contained in the court's able opinion in Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212 (Fla. 1986).

    
    

37. Generally, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. Nelson and Richard Advertising v. DOT 513 So.2d 181 (Fla. 1st DCA 1987); State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). There are no such exceptional circumstances here.

    
    

38. Herein, the parties presented two equally credible versions of what occurred before the permit application was submitted by Respondent. Accordingly, it appears there was no meeting of the minds such as would clearly establish the first element of an estoppel. Also, assuming, but not ruling, that Respondent's version of the pre-application events could be found to be more credible than Ms. Hession's version, that fact is largely immaterial

    because how the permit reads and where the erected sign is located are the dispositive issues here.

    
    

39. The sign is not .3 miles south of the SR 16 intersection as provided on the permit.

    
    

40. T & L Management, Inc. v. Department of Transportation, 497 So.2d 685 (Fla. 1st DCA 1986) held that compensation for revocation of outdoor advertising signs is appropriate only where signs are initially lawfully constructed and later become nonconforming due to a change in policy of Department of Transportation. That is not the situation in this case.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order affirming the May 2, 1991 notices, revoking the permit for the single sign in question, and ordering the removal of the sign within 30 days.

DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992.

ENDNOTES

1/ The parties stipulated that the "issues of law to be decided" were: (1) What point along the southbound lane of Interstate Highway 95, South of State Road 16, is the "ending of the pavement widening at the . . . entrance to the main- traveled way" as that language appears in Rule 10-14.009?; (2) Whether the subject sign is within 500 feet of an interstate highway interchange, contrary to the requirements of Rule 14-10.009, as enforced by Section 479.02(1) F.S.?;

1. Whether the Department is estopped from challenging the sign's permit and estopped further from seeking revocation of the permit and removal of the sign?;

2. Whether the following language of Rule 14-10.009, as same is enforced through Section 479.02(1) F.S.: "Outside incorporated towns and cities, no structure may be located adjacent or within five hundred (500) feet of an interchange, intersection at grade, or rest area. Said five hundred (500) feet shall be measured along the interstate from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way, or an interstate highway," is unconstitutionally vague?; (5) What is the impact of Section

479.111 F.S., if the challenged language of Rule 14-10.009 is unconstitutional?;

(6) Whether the actions of the Department constitute an unjust taking pursuant to the United States Constitution and the Florida Bill of Rights?; (7) Whether

the Department can cause the sign to be removed without paying just compensation pursuant to applicable law?

2/ Mr. Harry also asserted that he had placed ribbons in the DOT right-of-way fence for the sign in question here, which ribbons were still in place when DOT eventually issued its stop work order, (see FOF 19). The parties each provided contradictory evidence about the presence or absence of these fence ribbons at various times during the chronology of the many events they related with regard to this case. However, because the permit application indicated that the proposed sign locations were marked with stakes, and because Ms. Hession relied upon Respondent's ground stakes marked "FCOA" during her pre-approval application review, only the location of the ground stakes are material and significant here.

3/ This ground lease agreement obligated Respondent to pay Mr. Usina the sum of

$4,500.00 for each of the three (3) monopole outdoor advertising structures to be constructed on his property of which the sign in question is one.

4/ The sign in question is actually two signs, one facing north and one facing south from a single sign structure, and is the northernmost of three sign structures adjacent to the southbound lane of I-95, immediately south of SR 16.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4938T

The following constitute specific rulings, pursuant to Section 120.59(2) F.S., upon the parties' respective proposed findings of fact (PFOF)

Petitioner's PFOF:

1-6, 8, 10-12, Accepted except where unnecessary, subordinate 14-17 or cummulative to the facts as found.

7 First sentence is rejected as legal argument; the rest is accepted.

9, 18 Rejected as rife with legal argument. See FOF 5- 8, 24-25.

13 Accepted except that footnote 4 is rejected upon the legal analysis contained in FOF 10 and footnote 2.

19 Rejected as legal argument and/or as unnecessary, subordinate, or cumulative to the facts as found, but covered in FOF/COL

Respondent's PFOF:

1, 17-18 Accepted except for legal argument or immaterial matters.

2-5,8-11, 13, Accepted except where unnecessary,

16, 20 subordinate, or cumulative to the facts as found.

6 Accepted only as a recitation of unreconciled testimony; otherwise rejected as not supported by the record. Covered in FOF 2-7.

7, 19 Rejected as legal argument, but see, FOF 21-23. 12, 14-15 Accepted except for its legal conclusions on

reliance. There can be no legal reliance without a meeting of minds and where the sign is placed

in a different location than the permitted location.

COPIES FURNISHED:

Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

John Michael Traynor, Esquire

28 Cordova Street

St. Augustine, Florida 32084

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, M.S. 58

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NO. 91-4938T

DOT CASE NO. 91-0135

FIRST COAST OUTDOOR ADVERTISING, INC.,

Respondent.

/

FINAL ORDER

This cause arose from a May 2, 1991, notice issued to Respondent, FIRST COAST OUTDOOR ADVERTISING, INC. (hereinafter FIRST COAST), by the DEPARTMENT OF

TRANSPORTATION (hereinafter DEPARTMENT) asserting that an outdoor advertising sign erected by FIRST COAST had been erected in violation of Florida Administrative Code Rule 14-10.009 and was subject to removal pursuant to Section 479.105(2)(a), Florida Statutes. FIRST COAST requested a formal administrative hearing and the matter was referred to the Division of Administrative Hearings (DOAH).

The cause came on for formal hearing on June 18, 1992, at St. Augustine, Florida, before Ella Jane P. Davis, a duly assigned DOAH Hearing Officer.

Subsequent to the parties' submission of proposed recommended orders, the Hearing Officer issued a Recommended Order on October 20, 1992 (copy attached), wherein she recommended that the DEPARTMENT enter a formal order affirming the May 2, 1991, notice of intent to revoke the permit for the sign in question and ordering removal of the sign within 30 days. FIRST COAST filed exceptions to the Recommended Order which are addressed below.

References to the hearing transcript are designated herein as (Tr., P. ). Also, because the Hearing Officer's Recommended Order makes frequent references to "Points 1, 2 and 3," a copy of Joint Exhibit 12, where those points are denoted, is appended hereto for ease of reference.

FINDINGS OF FACT

Having reviewed the record in its entirety, the Hearing Officer's Findings of Fact are deemed correct and are adopted and incorporated as if fully set out herein.

FIRST COAST moved to dismiss the case on the ground that the DEPARTMENT incorrectly relied upon Section 479.105(2)(a), Florida Statutes, as the basis for its action in this case. Essentially, FIRST COAST contended that the fact

that it held permits for the sign in question required the DEPARTMENT to proceed under Section 479.08, Florida Statutes, rather than Section 479.105(2)(a).

The Hearing Officer correctly concluded that FIRST COAST's motion to dismiss should be denied. In addition to the reasoning relied upon by the Hearing Officer, denial of the motion was proper because FIRST COAST's having erected the sign at a location other than that approved in the permit rendered the permit invalid pursuant to Section 479.07(6), Florida Statutes.

Consequently, the sign at issue was erected without a valid permit and the DEPARTMENT's notice based upon Section 479.105(2)(a), Florida Statues was correct.

FIRST COAST takes exception to the Hearing Officer's denial of its motion to dismiss claiming that "the issue of the location of the sign in relation to the permitted location upon which the Hearing Officer made the determination that the sign should be revoked and removed was first raised at the Administrative Hearing in this cause held on June 18,1992, and was not raised in any notice given to the Respondent by the DEPARTMENT OF TRANSPORTATION nor at any point during the proceedings." The record reflects that FIRST COAST not only failed to object to the testimony going to this point put on by the DEPARTMENT, but also elicited testimony from the DEPARTMENT's witnesses on this issue as well. (Tr., pp. 38, 48, 53, 57, 60, 67) In effect, the issue was tried by consent of the parties. See Zayre Corp. v. Martinez, 439 So.2d 333, 335 (Fla. 3d DCA 1983); Di Teodoro v. Lazy Dolphin Development Co., 418 So.2d 428,

429 (Fla. 3d DCA 1982), review denied, 427 So.2d 737 (Fla. 1983). FIRST COAST's exception is therefore rejected.

FIRST COAST next takes exception to the Hearing Officer's finding that the sign was improperly located according to the permit. FIRST COAST bases its exception upon a survey completed subsequent to the Hearing Officer's issuance of the Recommended Order and upon the assertion that "[t]he testimony of Helen Hession is internally inconsistent with the measurements shown on the permits and the measurements referred to in her testimony before the Hearing Officer."

Findings of fact must be based exclusively on the evidence of record and on matters officially recognized. Section 120.57(1)(b)8, Florida Statutes. FIRST COAST's survey was not admitted into evidence at the hearing and cannot serve as a basis for setting aside the challenged finding. See United Tel. Co. v. Mayo,

345 So.2d 648, 652 (Fla. 1977); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 784, 785 (Fla. 1st DCA 1981).

In addition to FIRST COAST's failure to demonstrate how Helen Hession's testimony is "internally inconsistent," review of her testimony indicates that she did not testify to a specific measurement for the subject sign's actual location in relation to the intersection. She did, however, testify that based upon measurements, the sign was not located .30 miles from the intersection as authorized by the permit. (Tr., p. 60) FIRST COAST's second exception is therefore rejected.

FIRST COAST's third exception is directed toward the Hearing Officer's legal conclusion that the DEPARTMENT was not estopped from seeking revocation of the permit. As the Hearing Officer noted, there was no basis to conclude that FIRST COAST relied on Ms. Hession's representation as to the starting point for measurements for purposes of the "500 foot" rule because the evidence indicated that there never was a meeting of the minds between Ms. Hession and FIRST COAST's representative regarding the starting point. FIRST COAST's third exception is rejected.

FIRST COAST, in its fourth exception, complains that the burden of proof had been placed upon FIRST COAST. FIRST COAST fails to support this bare assertion with any demonstration whatsoever, on the instant record, that any improper shifting of the burden of proof occurred. Therefore, this exception is also rejected.

FIRST COAST's fifth exception going to the Hearing Officer's refusal to find Florida Administrative Code Rule 14-10.009 and Section 479.02(1), Florida Statutes, unconstitutionally vague is rejected. The DEPARTMENT and concomitantly, the Hearing Officer, have no jurisdiction or authority to make a determination regarding the constitutionality of a statute. Smith v. Willis, 415 So.2d 1331, 1335-1336 (Fla. 1st DCA 1982).

Additionally, the Hearing Officer properly concluded that FIRST COAST's failure to initiate a rule challenge proceeding pursuant to Section 120.56 precluded a determination of the rule's validity in the instant proceeding. Lee

v. State, Department of Transportation, 596 So.2d 802, 804 (Fla. 1st DCA 1992). Even if by merely raising the issue FIRST COAST could be considered to have presented the issue in the 120.57(1) proceeding, FIRST COAST has failed to advance any legal argument identifying the reason or reasons that the Rule is invalid. A simple assertion that the Rule is vague, with nothing more, is insufficient.

FIRST COAST's exceptions numbered 6, 7, and 9 challenge either findings of fact made by the Hearing Officer or the Hearing Officer's rejection of certain proposed findings of fact submitted by FIRST COAST on the ground that the Hearing Officer's action was contrary to the evidence presented at the hearing. FIRST COAST has neither alleged nor demonstrated that the challenged dispositions of factual issues by the Hearing Officer were not supported by competent substantial evidence. Absent a showing that there is no competent substantial record evidence to support the challenged findings of fact on the one band, or the rejection of proposed findings of fact on the other, the Hearing Officer's actions cannot be set aside by the DEPARTMENT. Heifetz v.

Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985).

FIRST COAST's exceptions 6, 7, and 9 are rejected.

FIRST COAST, in its eighth exception, claims that a number of conclusions of law in the recommended order are contrary to the law. Once again, other than the mere allegation, no specific argument or identification of reasons why the challenged conclusions are contrary to the law has been advanced. Thus, no basis for revisiting the challenged conclusions has been demonstrated. The exception is rejected.

Finally, FIRST COAST takes exception to the denial of an award of compensation for the revocation of its permits on the ground that the issue of the sign's location from the intersection of I-95 and State Road 16 was first raised in the Recommended Order without prior notice. As pointed out above, the issue was clearly tried by consent of the parties. Moreover, Section 479.08, Florida Statutes, does not authorize compensation to the permit holder for the revocation of a permit. Indeed, the only references to compensation in Chapter 479, provide for the payment of just compensation for the wrongful removal of a sign, Sections 479.105(1)(d) and 479.107(4), or for the removal of a lawful nonconforming sign. Section 479.24(1), Florida Statutes. Here, the record unequivocally indicates that the subject sign structure was unlawfully erected. FIRST COAST has no basis to assert a claim for compensation for revocation of its permits. The exception is rejected.

CONCLUSIONS OF LAW

The Conclusions of law set out in the Recommended Order are adopted with the supplementations noted in response to FIRST COAST's exceptions thereto.

Accordingly, it is

ORDERED that outdoor advertising sign permit numbers USINA 951 and USINA 952, be and the same are hereby revoked. Pursuant to Section 479.10, Florida Statutes, the subject signs and structure shall be removed by the permittee within 30 days from the date this Order becomes final. If the permittee falls to so remove the signs and structure, the DEPARTMENT shall do so without further notice and the cost of removal is assessed against FIRST COAST OUTDOOR ADVERTISING, INC.

DONE AND ORDERED this 23rd day of December, 1992.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED:

Ella Jane P. Davis Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

John Michael Traynor, Esquire

28 Cordova Street

St. Augustine, Florida 32084 Attorney for Respondent

Paul Sexton, Esquire

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

Motorists Information Services Coordinator Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Grady Greene District Secretary

Florida Department of Transportation 1901 South Marion Street

Lake City, Florida 32050

Tom Brown

District 2 Outdoor Advertising Administrator Florida Department of Transportation

1901 South Marion Street Lake City, Florida 32050

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY PETITIONER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY

(30) DAYS OF RENDITION OF THIS ORDER.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NO. 91-4938T

DOT CASE NO. 91-0135

FIRST COAST OUTDOOR ADVERTISING, INC.,

Respondent.

/

AMENDED FINAL ORDER

Due to a scrivener's error, incorrect permit numbers were set out in the Final Order entered herein on December 23, 1992. Accordingly, the concluding paragraph of the Final Order is amended as follows:

ORDERED that outdoor advertising sign permit numbers BC 901-35 and BC 902- 35, be and the same are hereby revoked, Pursuant to Section 479.10, Florida

Statutes, the subject signs and structure shall be removed by the permittee within 30 days from the date this Order becomes final. If the permittee fails to so remove the signs and structure, the DEPARTMENT shall do so without further notice and the cost of removal is assessed against FIRST COAST OUTDOOR ADVERTISING, INC.

DONE AND ORDERED this 2nd day of February, 1993.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED:

Ella Jane P. Davis Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

John Michael Traynor, Esquire

28 Cordova Street

St. Augustine, Florida 32084 Attorney for Respondent

Paul Sexton, Esquire

Florida Department of Transportation Haydon Bums Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

Motorists Information Services Coordinator Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Grady Greene District Secretary

Florida Department of Transportation 1901 South Marion Street

Lake City, Florida 32050

Tom Brown

District 2 Outdoor Advertising Administrator Florida Department of Transportation

1901 South Marion Street Lake City, Florida 32050

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY PETITIONER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.

Docket for Case No: 91-004938

Orders for Case No: 91-004938