17-002712 Crestview Paint And Body, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Thursday, February 1, 2018.

Summary: Petitioner's sign is located on the Department's right-of-way; and it does not meet an exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRESTVIEW PAINT AND BODY, INC.,

Petitioner,

vs. Case No. 17 - 2712

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 29, 2017, A dministrative Law Judge Yolonda Y.

Green, of the Division of Ad ministrative Hearings (ÐDivision Ñ),

conducted a duly - noticed final hearing in Crestview, Florida,

pursuant to 120.57(1), Florida Statutes (2017).

APPEARANCES

For Petitioner: Dixie Dan Powell, Esquire

Powell Injury Law, P.A.

602 South Main Street

Crestview, Florida 32536

For Respondent: Susan Schwartz, Esquire

Department of Transportation

Mail Statio n 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE S

The issues to be determined are : a) whether PetitionerÓs

sign for Crestview Paint and Body is located within Department

of Transportation Ós (ÐDepartmentÑ or ÐRespondentÑ) right - of - way;

and b) whether the sign is entitled to an on - premises exemption

from permitting.

PRELIMINARY STATEMENT

By letter dated February 7, 2017, the Department notified

Crestview Paint and Body, Inc. ( ÐCrestview Pai nt and BodyÑ or

ÐPetitionerÑ ) , that an outdoor advertising sign on its property

on Stat e Road 85, in Crestview , Florida , was displayed without a

permit as required by secti on 479.07(1) , Florida Statutes . On

April 18, 2017, the Departmen t issued a Notice o f Violation -

Illegally Erected Sign (ÐNoticeÑ) to Crestview Paint and Body

directing removal of the s ign.

On April 24, 2017, Petitioner timely filed a request for a

formal ad ministrative hearing to dispute the notice of

violation. On May 11, 2017, the De partment referred this case

to the Division for assignment of an administrative law judge.

The undersigned initially scheduled the hearing for July 20,

2017. On June 12, 2017, Petitioner filed an unopposed Motion

for Continuance , which the undersigned granted. The hearing was

rescheduled for September 26, 2017. On September 20, 2017, the

Respondent filed an Agreed Motion for Continuance, which the

unde rsigned granted. The hearing was rescheduled for

November 29, 2017.

The hearing convened on Novemb er 29, 2017 , as scheduled .

Petitioner presented the testimony of four witnesses: Wayne

Thompson, an emplo yee of Crestview Paint and Body; Lynda

Anderson, a former custo mer of Crestview Paint and Body; Senida

Oglesby, a code enforcement o f ficer for the Ci ty of Crestview;

and Glenn Edward Lowe, owner of Crestview Paint and Body.

Petitioner offered into evidence Exhibits 1 through 10, wh ich

were admitted into evidence. Respondent presented the testimony

of five witnesses : Robbie Collins , Department outdoo r

advertising i nspector, District 3 ; Danny Deal , Department

s urveyor ; George Massey , Department s urvey and r ight - of - way

mapping m anager ; Billy Benson , Department outdoor advertising

field a dministrator ; and Michael Green , Department outdoor

advertising c ontrol a dministrator. The Department offered into

evidence E xhibits 1 through 18, which were admitted.

The parties stipulated to facts in the Joint Prehearing

Stipulation which have been incorporated in the findings of fact

below , to the extent relevant.

A one - volume Transcript of the procee dings was filed on

December 22, 2017 . The parties timely filed their Proposed

Recommended Orders and both have been duly considered in the

preparation of this Recommended Order.

All citations are to the 2017 Florid a Statutes , except as

otherwise indicated.

FINDINGS OF FACT

1 . The Department of Transportation is the state agency

responsible for regulating outdoor advertising along interstates

and federal - aid primary roads in accor dance with chapter 479 ,

Florida Administrat ive Code C hapter 14 - 10 , and a 1972 Federal -

State Agreement.

2 . Petitioner, Crestview Paint and Body, owns and operates

an auto body repair shop on 956 West James Lee Boulevard in

Crestview, Florida, and has maintained that location since 1988.

In 2006, Pe titioner bought property at 701 South Ferdon

Boulevard in Crestview, Florida, including a pre - existing sign

for Jet Muffler and a building with four units . Petitioner

opened the business location in 2007 , and replaced the Jet

Muffler sign with one for Crestv iew Paint and Body .

3. One of the issues of dispute in this matter is whether

Petitioner con ducted business at the Ferdon Boulevard location.

Mr. L owe, owner of Crestview Paint and Body, testified that the

Ferdon Boulevard location was operated as a concierge service

for Crestview Paint and Body. Mr. Lowe maintains a business

occupational license for the Ferdon location and the license was

effective and valid when Respon dent issued the Notice on

April 17, 201 7. While a tax collector print - out reflected the

business was closed, the credible evidence supports that the

concierge location maintained a valid business occupation

license. Mr. Lowe had business cards made with a photograph of

the Ferdon Boulevard location showing Hertz and Crestview Paint

and Body, and the words ÐCollision Concierge and Rental Car

Center, 701 S. Ferd on Blvd, Crestview, Florida.Ñ Another card

read Ð2 Locations to Se rve You BetterÑ with the addresses for

Ferdon Boulevard and James Lee Boulevard.

4. The Crestview Paint and Body sign at issue h ere was

located at the Ferdon Boulevard location. It was erected at the

same spot as the predecessor sign that advert ised th e Jet

Muffler business and installed under permit No. 2007 - 0430.

Petitioner complied with all Crestview local ordinances required

to erect the sign. As the s ign was replacing an established

sign, it is not clear if the City of Crestview required a survey

of the l ocation prior to installation. The sign has been owned

and operated by Crestview Paint and Body in its current location

for the past 10 years.

5. Wayne Thompson, an employee of Crestview Paint and

Body, testifie d that he works at the Ferdon l ocation

periodically. He meets customers at the location as needed , an

average of two times per month. An employee was initially

assigned to work full - time at the concierge location, but t he

position was reduced to part - time, and eventually eliminated.

6. Senida Oglesby, a former customer of Crestview Paint

and Body, testified that she received concierge service at the

Ferdon Boulevard location. She took her vehicle to the location

and it was transferred to the main location for completion of

service . However, Ms. Oglesby stated she was last at the

business approximately 3 to 4 years ago.

7. Mr. Lowe testified that he completed an inspection of a

vehicle a t the concierge location on an undetermined date.

8. Respondent asserts that its i nvestigato r visited the

Ferdon Boulevard location on February 7, 2017; April 17, 2017;

and May 15, 2017, and observed no business activity and

concluded there was no business being conducted on behalf of

Crestview Paint and Body at the location.

9 . The credible evidence demonstrates that there was no

legitimate business activity being conducted on behalf of

Crestview Paint and Body at the Ferdon Boulevard location .

10 . Ferdon Boulevard is a federal - aid primary highway

subject to Department permitting in accorda nce wi th c hapter 479 .

Crestview Paint and Body has never requested or received a

permit for the display of outdoor advertising at the Ferdon

Boulevard location .

11 . In 2015, Crestview Paint and Body leas ed Bay 101 of

the Ferdon B oulevard location to a vape and s moke shop. The

header signs positioned abov e the units numbered 101, 103, and

104 had signs for the v ape and smoke shop. There was no header

sign above unit 102.

12 . Mr. Collins plac ed a Notice sticker on the Crestview

Paint and Body sign located at Ferdon Boulevard . On April 18,

2017, a written copy of the Notice was sent to Crestview Paint

and Body at t he James Lee Boulevard location.

13 . In preparing for the hearing, Billy Benson , a

Department outdoor a dv ertising field a dministrator , discovered

that the sign appeared to be partially on the property owned by

Crestvie w Paint and Body and partially o n the Department Ós

right - of - way.

14 . The Department Ós right - of - way is defined in sect ion

334.03(21) , Florida Statutes, as land in which the Department

owns the fee or has an easement devoted to or required for use

as a transportation facility. At the signÓs location, the

right - of - way extended 50 feet to the right and 47 feet to the

left of the centerline of Ferdon Boulevard.

15 . Mr. C o llins again visited the Ferdon Boulevar d

location along with Sam Rudd. Mr. Collins and Mr. Rudd located

survey markers to the north and south of the sign esta blishing

the DepartmentÓs right - of - way line extending 10 feet beyond the

edge of the sidewalk. T he front edge of the sign began at two

feet beyond the edge of the sidewalk and the back edge of the

sign was 12 feet beyond the sidewalk.

16 . A survey conducted by a Department survey crew in

November 2017, confirmed that 7.8 feet of the s ign was locate d

within the DepartmentÓs right - of - way and 2.6 feet of the s ign

was on PetitionerÓs property.

17 . On September 20, 2017, the Department issued a n

Amended Notice of Violation Î Illegally Erected Sign, noting that

in addition to being an unpermitted sign in vio lation of section

479.105, the s ign was located within the Department Ós right - of -

way in violation of sections 479.11(8) and 337.407.

18 . On September 20, 2017, the parties filed an Agreed

Motion for Continuance, based on the recently discovered

infor mation and the sudden death of Mr. LoweÓs father. The

motion provided:

This matter involves an unpermitted sign in

Okaloosa County. The department recently

surveyed the signÓs location and determined

the sign is within the DepartmentÓs right of

way. Consequently, the department is

issuing an amended notice of violation

citing section 337.407 and 479.107, Florida

Statutes, in addition to the initial reason

for the violation based on section 479.105,

Florida Statutes. The Department believes

it is in t he interest of judicial economy to

have all charges determined in a single

hearing. The Petitioner has indicated

additional time will be needed to respond to

the notice of violation as amended.

19 . Petitioner contends that it objected to the

DepartmentÓs amendment of the Notice initially filed in this

matter. While the Department did not pro perly file a Motion to

Amend it s Notice, there was no showing that Respondent was

prejudiced by the Department's failure to comply with all

requirements o f the statute. Assuming arguendo there was

prejudice, any prejudice alleged by Petitioner was cured.

20 . Petitioner agreed to the continuance, which stated the

amendment of the Notice as a basis for the continuance.

Further, Petitioner had more than 60 days to conduct discovery

regarding the new allegations and had sufficient time to prepare

for the hearing.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this

proceeding pursuan t to sections 120.569 and 120.57(1).

22 . The Department has the authority to regulate outdoor

advertising and issue permits for signs locat ed along interstate

and federal - aid primary hi ghways pursuant to c hapter 479 and

chapter 14 - 10 .

23 . Section 479.07(1) provides as follows :

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

incorpora ted 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, Ðon any portion of

th e State Highway System, interstate, or

federal - aid primary systemÑ shall mean a

sign located within the controlled area

which is visible from any portion of the

main - traveled way of such system.

24 . Section 479.105(1) provides as follows :

A sign tha t 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 m aintained 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.

25 . The Department has charged Petitioner with maintaining

a sign visible to a federal - aid primary road without a permit

and bore the burden of proving that the signs were illegal.

See Fl a . Dep Ó t of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981) (the burden of proof, apart from statute, is

on the party asserting the affirmative of an issue before an

administrative tribunal). Having presented evidence that the

sign is visible to and within 660 feet of a federal - aid primary

highway, the burde n then shifted to Petitioner to demonstrate

that the sign was entitled to an exemption from the permitting

requirement. See Henderson Sign Serv. v . Dep Ó t of Transp. ,

390 So. 2d 159 (Fla. 1st DCA 1980).

On - Premises Permitting Exemption

26 . Petitioner c ontends that the Crestview Paint and Body

sign is exempt from pe rmitting as an on - premises sign in

accordance with section 479.16(1), which provides as follows :

(1) Signs erected on the premises of an

establishment which consist primarily of the

name of the establishment or identify the

principal or accessory merchandise,

services, activities, or entertainment sold,

produced, manufactured, or furnished on the

premises of the establishment and which

comply with the lighting restrictions

imposed under s. 47 9.11 (5), or signs owned

by a municipality or a county located on the

premises of such municipality or county

which display information regarding

governmental services, activities, events,

or entertainment. For purposes of this

section, the following types of messages are

not considered information regarding

governmental services, activities, events,

or entertainment:

(a) Messages that specifically reference

any commercial enterprise.

(b) Messages that reference a commercial

sponsor of any event.

(c) Pe rsonal messages.

(d) Political campaign messages.

If a sign located on the premises of an

establishment consists principally of brand

name or trade name advertising and the

merchandise or service is only incidental to

the principal activity, or if the owner of

the establishment receives rental income

from the sign, the sign is not exempt under

this subsection.

27 . PetitionerÓs ownership of the parcel, maintenance of a

business license for the location, and scheduling of

appointments to meet customers at the location does not

constitute business activity of paint and body service conducted

on the property sufficient to warrant an on - premises exemption

for Crestview Paint and Body. See McDonaldÓs Corp. v. Dep Ó t of

Transp . , 535 So. 2d 323 (Fla. 2 d DCA 19 88) (where a parcel of

land is being used solely for advertising purposes and the

business activity is conducted more than 1,000 feet away, the

sign is not entitled to an on - premises exemption).

28 . The undersigned finds that while there may have been

min imal business activity conducted on the premises, the

business was not meaningful to warrant an exemption for an

on - premises exemption. The more credible evidence demonstrates

that to the extent any activities may have been conducted on

behalf of the Cre stview Paint and Body, the sign and any message

displayed are not an integral part of any business being

conducted by Petitioner on the premises.

Acknowledgment Sign

29 . Petitioner also contends that its sign meets the

requirements for an acknowledgment sign. The top portion of the

s ign consists of an LED electronic display that provides a

message thanking individuals for their community support.

Pursuant to section 479.01(19), a ÐsignÑ subject to permitting

is Ðany combination of structure and message Ñ to include Ðan

automatic changeable facing, designed, intended, o r used to

advertise or inform . Ñ Although section 479.16 lists a nu mber of

permitting exemptions, acknowledgment signs are not among the

listed messages entitled to an exemption from permit ting.

Petitioner was , therefore , obligated to obtain a permit for the

LED sign in accordance with c hapter 479.

Right - of Way Encroachment

30 . Section 337.407(1) , Florida Statutes, provides Ð[n]o

person shall erect any sign, as defined in C hapter 479, or light

within the right - of - way limits of any road on the interstate

highway system, the federal - aid primary highway system, the

State Highway System, or the State Park Road System.Ñ Section

479.11(8) prohibits the maintenance of any sign Ðlo cated upon

the right - of - way of any highway on the State Highway System,

interstate highway system, or federal - aid primary highway

system.Ñ The evidence presented at hearing demonstrates that

the s ign is part ially located o n the DepartmentÓs right - of - way.

31. Even if PetitionerÓs sign met the req uirement for a

on - premises sign , which was not the case here, the evidence

demonstrates that it is partially located on the right - of - way

and must be removed.

Estoppel

32 . Petitioner does not dispute that the Fer don Boulevard

sign is located s ubstantially on the DepartmentÓs right - of - way,

but suggests that the Department should be estopped from taking

any enforcement action as the s ign was permitted b y the City of

Crestview over 10 years ago.

33 . To establish equitable estoppel against a state

agency, Petitioner would need to establish : 1) that a

representation was made as to a material fact that is contrary

to a later asserted position ; 2) Petitioner relied on that

representation ; and 3) as a result, Petition er changed its

position to its detriment. Salz v. Dep Ó t of Admin., Div. of

Ret . , 432 So. 2d 376, 378 (Fla. 3 d DCA 1983). In the present

case, Petitioner has not alleged that the Department made any

affirmative statement authorizing erection of the sign o r that

Petitioner relied on Department statements to its detriment.

The City of CrestviewÓs permitting the s ign does not negate the

DepartmentÓs authority to take enforcement action upon learning

tha t a substantial portion of the s ign is loca ted o n the

DepartmentÓs right - of - way.

Laches and Waiver

34 . Similarly, Petitioner failed to demonstrate that the

DepartmentÓs action should be barred by the doctrines of laches

or waiver. Laches is an equitable doctrine that is applied not

based upon unreasonable delay in enforcing a right, coupled with

a disadvantage to the person against whom the right is sought to

be asserted. In re Biddiscombe Intern., LLC , 392 B.R. 909

(Bankr. M.D. Fl a. 2008) . The elements of laches are:

(1) conduct by the defendant, or one under whom he claims,

giving rise to the situation of which complaint is made;

(2) delay in asserting the plaintiffÓs rights, after the

plaintiff has had notice or knowledge of the defendantÓs

conduct, and an opportunity to institute suit; (3) lack of

knowledge on the part of the defendant that the plaintiff would

assert the right on which he bases his suit; and (4) injury or

prejudice to the defendant in the event relief is accorde d to

the plaintiff. Van Meter v. Kelsey , 91 So. 2d 327, 332. (Fla.

1956). Petitioner has not established that the Department was

aware of the violation and took no action or affirmatively

waived its entitlement to take action upon learning of the

violati on.

Selective Enforcement

35 . Petitioner argues that the Department Ós issuance of a

violation on its s ign, without investigating other signs along

Ferdon Boulevard, constitutes selective enforcement. Petitioner

relies on Florida Department of Transportation v. E . T. Legg &

Company , 472 So. 2d 1336 (Fla. 4th DCA 1985), wherein the Court

found competent substantial evidence in the record to support

selective enforcement where the Department removed only one

sign, despite having issued numerous cit ations to others for the

same offense.

36 . To establish that the government entity has

selectively enforced its statutes, one must first demonstrate

that the agency was aware of other violators, but chose to take

no action. Meriste m Valley Nursery v. Me tro Dade C nty . ,

428 So. 2d 728 (Fla. 3 d DCA 1983) . Petitioner presented

photograph s of signs that may be located on the D epartment Ós

right - of - way, but a survey was not done to confirm this

suggestion and the Department received no complaints or reports

to alert it of the potential violations. Petitioner has not

established that the Department was aw are of other violators and

elected t o only pursue removal of its sign.

37 . Selective enforcement is only prohibited when (1) an

individual is singled out for prosecution although the

government was aw are others had violated the law; and (2) the

decision on who to prosecute is based on an u njustifiable

standard such as race, religion, or other arbitrary

classification. State v. A.R.S. , 684 So. 2d 1383, 1384 (Fla.

1st DCA 1996). Petitioner has not established that the

Department impose d its regulation based on impermissible factors

and thus, did not demonstrate the Department engaged in

selective enforcement.

38 . Moreover, the Department is not precluded from taking

enforcement action against Petitioner merely because other signs

may be in violation.

39 . Based on the foregoing, the Crestview Paint and Body

sign is located on the Department Ós right - of - way and does not

qualify for an exemption as an on - premises sign.

RECOMMENDATION

Upon consideration of the above Findings of Fact and

Conclusion s of Law, it is RECOMMENDED that the Florida

Department of Transportation enter a final order finding that

PetitionerÓs sign was erected and maintained on the Department Ós

right - of - way. Further, the final order should find that

Petitioner is not entitled to an exemption for an on - premise s

sign.

DONE AND EN TERED this 1st day of February, 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February , 2018 .

COPIES FURNISHED:

Dixie Da n Powell, Esquire

Powell Injury Law, P.A.

6 02 South Main Street

Crestview, Florida 32536

(eServed)

Susan Schwartz, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Andrea Shulthiess, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building , Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building , Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

Department of Transportation

Haydon Burns Building , Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

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.