STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases on November 27, 2000, and on January 11, 2001, 1/ at Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jodi B. Jennings, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Gerald S. Livingston, Esquire 2/

Livingston and Reilly, P. A.

612 East Colonial Drive, Suite 350 Post Office Box 2151

Orlando, Florida 32802

Eugene A. (Andy) Hancock, Jr. Post Office Box 330097 Miami, Florida 32333-0097

STATEMENT OF THE ISSUES

Whether the subject outdoor advertising signs are illegal because they were erected without state permits from Petitioner.

Whether the subject signs should be removed.

Whether Petitioner is equitably estopped to assert that the signs are illegal and should be removed.

PRELIMINARY STATEMENT

Respondent is the owner of two double-faced advertising structures located in Miami, Florida. Petitioner asserts that all four signs are illegal and must be removed because they were erected without necessary state permits. Respondent timely challenged Petitioner's proposed action by requesting a formal administrative hearing for each sign face. The four separate cases filed with the Division of Administrative Hearings were consolidated, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of

C. Jean Cann and Lynn Holschuh, both of whom are employees of Petitioner. The parties offered Joint Exhibits 1 through 4 and Petitioner offered Petitioner's Exhibits 1 through 4. All of these exhibits were admitted into evidence. Eugene A. (Andy) Hancock, Jr., was the only witness who testified on behalf of Respondent.

A Transcript of the proceedings conducted November 27, 2000, was filed on December 8, 2000. A Transcript of the

proceedings conducted January 11, 2001, was filed on January 17, 2001. Petitioner filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 95 on Northwest 6th Court, which is between Northwest 75th Street and Northwest 76th Street, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 95 sign. The Interstate 95 sign has two facings, each of which is visible from Interstate 95. The Interstate 95 sign is located within

   147 feet of the right-of-way of Interstate 95.

   
   

2. Respondent owns and maintains an outdoor advertising sign located adjacent to Interstate 395 at the corner of Northwest 14th Street and Northwest 1st Court, Miami, Dade County, Florida. For ease of reference, this sign will be referred to as the Interstate 395 sign. The Interstate 395 sign has two facings, each of which is visible from Interstate 395. The Interstate 395 sign is located within 240 feet of the right- of-way of Interstate 395.

3. Eugene A. (Andy) Hancock, Jr., is the President of the corporate Respondent and, at the times pertinent to this

   proceeding, controlled the activities of Respondent.

   
   

   Mr. Hancock caused the corporate Respondent to lease the respective properties on which the subject signs are located in November 1998. He thereafter caused the corporate Respondent to erect the two double-faced signs at issue in this proceeding.

4. The subject signs were constructed during September and October 1999. Each sign was constructed without a state permit from Petitioner. Each sign is within the permitting jurisdiction of Petitioner.

5. Mr. Hancock testified that his company did not apply for permits from Petitioner because of a conversation he had with Bernard Davis, a former outdoor advertising administrator for Petitioner. Mr. Hancock testified that Mr. Davis represented to him that his company would not need permits from Petitioner if it had permits from the City of Miami. This testimony is rejected. 3/

6. Respondent has applied for state sign permits for the subject signs. Permits for these signs have not been issued because of their proximity to existing, permitted signs. 4/

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

8. Petitioner has the burden of proving by a preponderance of the evidence that the subject signs require state permits and, that without such permits, the signs are illegal. Section 120.57(1)(j), Florida Statutes. Petitioner has met that burden in this proceeding.

9. Section 479.07(1), Florida Statutes, provides as follows:

   1. Except as provided in ss. 479.105(1)(e) and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. For purposes of this section, "on any portion of the State Highway System, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

      
      

10. The exceptions set forth in Sections 479.105(1)(e) and 479.16, Florida Statutes, referred to in Section 479.07(1), Florida Statutes, are inapplicable to this proceeding.

11. Section 479.01(4), Florida Statutes, contains the following definition:

    (4) "Controlled area" shall mean 660 feet or less from the nearest edge of the right- of-way of any portion of the State Highway System, interstate, or federal-aid primary system and beyond 660 feet of the nearest

    edge of the right-of-way of any portion of the State Highway System, interstate, or federal-aid primary system outside an urban area.

    
    

12. Section 479.105, Florida Statutes, provides, in pertinent part, as follows:

    1. Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

       1. Upon a determination by the department that a sign is in violation of

          s. 479.07(1), the department shall prominently post on the sign face a notice stating that the sign is illegal and must be removed within 30 days after the date on which the notice was posted. However, if the sign bears the name of the licensee or the name and address of the nonlicensed sign owner, the department shall, concurrently with and in addition to posting the notice on the sign, provide a written notice to the owner, stating that the sign is illegal and must be permanently removed within the 30- day period specified on the posted notice. The written notice shall further state that the sign owner has a right to request a hearing, which request must be filed with the department within 30 days after the date of the written notice. However, the filing of a request for a hearing will not stay the removal of the sign.

       2. If, pursuant to the notice provided, the sign is not removed by the sign owner within the prescribed period, the department shall immediately remove the sign without

          further notice; and, for that purpose, the employees, agents, or independent contractors of the department may enter upon private property without incurring any liability for so entering.

          
          

13. Petitioner established that the signs at issue in this proceeding were erected without requisite state permits and, consequently, are illegal. Each sign should be removed in accordance with the provisions of Section 479.105, Florida Statutes.

14. Respondent argues that Petitioner should be equitably estopped to assert that the signs are illegal because of the purported statements by Mr. Davis. The doctrine of equitable estoppel is applied against the state only under rare and exceptional circumstances. North American Co. v. Green, 120

So. 2d 603 (Fla. 1959). To establish equitable estoppel, Respondent would have to prove that a representation was made as to a material fact that is contrary to a later asserted position; that Respondent relied on that representation; and that as a result, Respondent changed its position to its detriment. Salz v. Department of Administration, Division of Retirement, 432 So. 2d 376, 378 (Fla. 3d DCA 1983). As reflected above, Petitioner failed to establish that Mr. Davis told Mr. Hancock that his company would not need state permits for the subject signs as along as he had permits from the City of Miami. Even had Mr. Davis made such a representation to

Mr. Hancock, that representation would be a misstatement of law. Petitioner would not be estopped from asserting that the signs are illegal based on a misstatement of law by Mr. Davis.

Department of Revenue v. Anderson, 403 So. 2d 400 (Fla. 1981). Petitioner correctly asserts that Respondent has failed to establish the elements of estoppel.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that the subject signs are illegal and must be removed pursuant to Section 479.105, Florida Statutes.

DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2001.

ENDNOTES

1/ The hearing on January 11, 2001, was for the limited purpose of permitting Eugene A. (Andy) Hancock, Respondent's president, to testify as to his purported conversations with Bernard Davis,

a former employee of Petitioner, and to provide Petitioner an opportunity to rebut that testimony.

2/ Subsequent to the hearing conducted November 27, 2000,

Mr. Livingston withdrew as counsel for Respondent. Mr. Hancock represented Respondent following Mr. Livingston's withdrawal.

3/ At the time of the final hearings, Mr. Davis had left the employ of Petitioner and his whereabouts were unknown.

Mr. Hancock's self-serving testimony is completely uncorroborated and, for the reasons set forth below, is rejected. Mr. Hancock was not certain as to when the conversations occurred. It is the business practice for Petitioner's administrators to note conversations with members of the public as to permits. Mr. Davis made no notation as to any conversation he may have had with Mr. Hancock. As an outdoor advertising administrator, Mr. Davis knew or should have known that these signs required state permits from Petitioner based on their respective locations, and he knew or should have known that he had no authority to waive a statutory requirement. By letter dated October 20, 1999, Mr. Davis instructed Respondent to stop construction on the Interstate 395 sign. By letter dated October 26, 1999, Mr. Davis advised Respondent that its recently constructed Interstate 95 sign was illegal and should be removed. On February 10, 2000, Mr. Davis issued the four notices of violation that are at issue in this proceeding. These letters and notices of violation contradict Mr. Hancock's testimony that Mr. Davis told him the signs did not require state permits. Moreover, Mr. Hancock, with over ten years in the outdoor advertising business, knew or should have known of Petitioner's permitting requirements.

4/ Section 479.07(9), Florida Statutes, provides, in pertinent part, as follows:

1. A permit shall not be granted for any sign for which a permit had not been granted

. . . unless such sign is located at least:

1. One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway.

COPIES FURNISHED:

Jodi B. Jennings, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Gerald S. Livingston, Esquire Livingston & Reilly, P.A.

612 East Colonial Drive, Suite 350 Post Office Box 2151

Orlando, Florida 32802

Eugene A. (Andy) Hancock, Jr. Post Office Box 330097

Miami, Florida 33233-0097

James C. Myers, Agency Clerk Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-001569

Orders for Case No: 00-001569