STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD E. STEVENS, )

)

Petitioner, )

)

vs. ) Case No. 97-1701T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on October 7, 1998, in Tavares, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael A. Croak, Esquire

14229 U. S. Highway 441

Tavares, Florida 32778

For Respondent: Andrea V. Nelson, Esquire

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether Petitioner's outdoor advertising sign on the east side of U. S. Highway 441, 1.2 miles north of State Road 46, in Lake County, Florida, can be maintained on the ground it is exempt from permitting requirements.

PRELIMINARY STATEMENT

By application filed on September 22, 1994, Petitioner, Donald E. Stevens, sought the issuance of a state sign permit for an outdoor advertising sign on the east side of U. S. Highway 441, 1.2 miles north of State Road 46, in Lake County, Florida.

On October 17, 1994, Respondent, Department of Transportation, advised Petitioner that his application had been denied on the ground the "[p]roposed location is only 818' North of location - Tag BJ630-25. Must be at least 1,000' to be a conforming location." Petitioner then requested a formal hearing to contest the agency's decision. After the parties were unable to successfully resolve the matter through a stipulation, it was forwarded by Respondent to the Division of Administrative Hearings on April 2, 1997, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated July 15, 1997, a final hearing was scheduled on September 22, 1997, in Tavares, Florida. At Petitioner's request, the matter was continued to March 5, 1998. At Respondent's request, the case was continued to May 28, 1998, and then again to October 7, 1998, at the same location. On October 5, 1998, the case was transferred from Administrative Law Judge P. Michael Ruff to the undersigned.

At final hearing, Petitioner testified on his own behalf. Also, he offered Petitioner's Exhibits 1-4. All exhibits were

received in evidence. Respondent presented the testimony of Peter W. Wright, district outdoor advertising administrator, and Michael Dollery, an outdoor advertising inspector. Also, it offered Respondent's Exhibits 1-4. All exhibits were received in evidence. Finally, the undersigned took official recognition of the 1995 and 1997 versions of Chapter 479, Florida Statutes.

The transcript of hearing was filed on October 21, 1998. Proposed findings of fact and conclusions of law were filed by Respondent on November 23, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At issue in this case is whether Petitioner, Donald E. Stevens, is entitled to maintain an existing outdoor advertising sign located on the eastern side of U. S. Highway 441, 1.2 miles north of State Road 46, in Lake County, Florida. In proposed agency action issued on October 17, 1994, Respondent, Department of Transportation (DOT), denied Petitioner's application for a permit on the ground the sign was located "only 818' North of location - Tag BJ630.25. [It] [m]ust be at least 1,000' to be a conforming location." Petitioner now concedes that he cannot qualify for a permit, but he maintains that the sign is an "on- premise sign" and is therefore exempt.

2. Petitioner owns certain real property bordering on

   U. S. Highway 441, in Lake County, Florida, on which is located a commercial building and a large billboard sign. The structure has been located on the property since 1968. The building contains a large, walk-in cooler, while two portable coolers are located just outside the building. An occupied mobile home sits on the rear part of the property.

3. On September 1, 1994, Petitioner received a Notice of Violation - Illegally Erected Sign from DOT indicating the sign was not properly permitted. In response to this notice, Petitioner submitted an application to DOT on September 15, 1994. After reviewing the application, on October 17, 1994, DOT denied the same on the ground the sign violated statutory spacing requirements by being within 1,000 feet of another permitted sign.

4. In an effort to informally resolve the matter, Petitioner met with DOT representatives in Tallahassee and eventually executed a stipulation on March 13, 1995, in which he agreed that by March 20, 1995, he would "provide [DOT] with written documentation (e.g., a lease) that the business being advertised on the subject sign is on the same business' premises as the subject sign." Petitioner also agreed to "safely cover over or paint out that portion of advertising copy on the subject sign which refers to an off-site business location." The stipulation further provided that if these conditions were met, DOT would enter a Final Order dismissing the petition for hearing

   and allowing Petitioner to maintain the sign as an off-premise sign. If, however, Petitioner failed to comply with the agreement, DOT would refer the matter to the Division of Administrative Hearings for a formal hearing. Contending that Petitioner has failed to meet the terms of the agreement, and that his sign is now unlawful, DOT has initiated this proceeding.

5. In order for the sign to qualify as an on-premise sign under the terms of the stipulation, there would have to be business activity inside the building related to the business advertisement on the sign. In other words, the lessee would have to utilize a portion of the building on Petitioner's property for its business.

6. To fulfill his side of the agreement, Petitioner provided DOT with a lease agreement dated January 5, 1995, between he and Vic Donahey, under which Donahey agreed to rent the "on-site bill board and walk in cooler in the building" for a fixed sum of $150.00 plus tax each month. Donahey operates a restaurant in Leesburg, Florida, known as Vic's Embers, which is approximately fifteen miles from the location of the sign, and a catering business at three locations in Sumter and Lake Counties.

7. Pursuant to the lease agreement, Petitioner has allowed Donahey to carry the following message on his sign: "Vic Embers - Great Steak! Fresh Seafood! Perfect Pasta!" Accordingly, the sign meets the definition of an outdoor advertising sign.

8. Within a few weeks after the stipulation was executed by

   the parties, a DOT inspector attempted to inspect the commercial building to determine whether Donahey was actually using the cooler for his business activities. At that time, the inspector found the building with a "for rent" sign and could not gain access to the cooler area. In the following months, the inspector attempted to inspect the cooler on several occasions but was never given access to that part of the building. As recently as a week prior to the hearing, the inspector again visited the premises but found the building closed and could not gain access to the premies.

9. When the lease was executed, Petitioner was under the impression that Donahey would use the cooler to store foodstuffs (such as vegetables) for his restaurant and catering business. However, he has no knowledge as to whether Donahey has ever used the facility for storage purposes and says he has never inspected the coolers since 1995 to ascertain if Donahey actually uses them.

10. In view of the complete absence of proof that there is any business activity in the building that is related to the message on the sign, it is found that the terms of the stipulation have not been satisfied by Petitioner, and that his existing sign cannot qualify for an exemption.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto

    pursuant to Section 120.569, Florida Statutes (Supp. 1998).

    
    

12. As the party seeking to qualify for an exemption, Petitioner bears the burden of proving entitlement to that relief by a preponderance of the evidence. Fla. Dep't of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

1. Section 479.16, Florida Statutes (1995), specifies the type of signs for which no permits are required. Subsection (1) provides that "signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment" are exempt from permitting requirements. This type of sign is commonly referred to as an "on-premise" exemption. At the same time, the term "premises" is defined in Section 479.01(15), Florida Statutes (1979), as "all the land area under ownership or lease arrangement to the sign owner which are contiguous to the business conducted on the land . . ."

2. Because there is no evidence that the lessee is conducting any business activities on Petitioner's premises, the sign fails to qualify as an exemption under Section 479.16(1), Florida Statutes. Therefore, the sign violates the requirements of Chapter 479, Florida Statues, and should be removed.

3. Finally, in order for the doctrine of equitable estoppel to lie, as Petitioner has asserted in his request for a

hearing, there must have been (a) a representation by DOT as to a material fact that is contrary to a later-asserted position; (b) reliance by Petitioner on that representation; and (c) a change in position by DOT detrimental to Petitioner's interests, which was caused by the representation and reliance thereon. Tri-State Systems, Inc. v. Dep't of Transp., 500 So. 2d 212, 215-216 (Fla. 1st DCA 1986). In this case, DOT made no representation as to a material fact that was contrary to a later-asserted position.

This being so, the doctrine cannot apply.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Transportation enter a Final Order determining that Petitioner's outdoor advertising sign is in violation of Chapter 479, Florida Statutes, and should be removed.

DONE AND ENTERED this 2nd day of December, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this day 2nd of December, 1998.

COPIES FURNISHED:

Diedre Grubbs, Agency Clerk Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-00458

Michael A. Croak

14229 U. S. Highway 441

Tavares, Florida 32778

Andrea V. Nelson, Esquire Department of Transporation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

Pamela S. Leslie, Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Transportation.

Docket for Case No: 97-001701

Orders for Case No: 97-001701