90-002193 Department Of Transportation vs. Creative Media Outdoor Advertising Status: Closed Recommended Order on Monday, April 22, 1991.

Summary: Sign violated rule since it was constructed within 500 foot of Interstate Four interchange.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2193T

)

CREATIVE MEDIA OUTDOOR )

ADVERTISING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on

January 8, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated

Hearing Officer of the Division of Administrative Hearings. The parties were

represented at the hearing as follows:

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr.

Assistant General Counse

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Gerald S. Livingston

Kreuter & Livingston, P.A.

Suite 1150

200 East Robinson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is entitled to a

sign permit for a location on Fairbanks Avenue facing Interstate 4, and whether

the sign which has been erected at that location is in violation of applicable

provisions of Chapter 479, Florida Statutes.

PRELIMINARY STATEMENT

This case began on February 5, 1990, when the Department of Transportation

(Department) charged the Respondent, Creative Media Outdoor Advertising

(Creative Media), with violations of laws or rules regulating outdoor

advertising signs. More specifically, the Department alleged that a sign

located 100 feet east on SR 426 along Interstate 4 (I 4) violated Section

479.07(1), Florida Statutes, since it did not have a sign permit; violated

Section 479.07(9)(a)1, Florida Statutes, since it failed to meet the spacing

requirements related to sign on an Interstate; and violated Section 479.02(1),

Florida Statutes, and Rule 14-10.006(b)5, Florida Administrative Code, since it

was located within 500 feet of a restricted interchange.

On or about February 21, 1990, the Respondent filed an application for a

permit for the sign which is the subject matter of this case. The Department

issued a memorandum of returned application on March 9, 1990, which again

specified that the sign application was not approved because it did not meet

spacing requirements and was within 500 feet of a restricted interchange. On

March 28, 1990, the Respondent filed a request for an administrative review of

the Department's denial, and the matter was forwarded to the Division of

Administrative Hearings for formal proceedings on April 9, 1990.

At the hearing, the Department presented the testimony of the following

witnesses: Michael Dollery, an outdoor advertising inspector employed by the

Department; and Peter Wright, administrator for the outdoor advertising section

for Orange County, Florida. The Department's exhibits numbered 1, 2, 3a, 3b,

3c, 4, 5, 6, and 7 were admitted into evidence.

The Respondent presented the testimony of Peter Fekete, president of

Creative Media; and Peter Wright. The Respondent's exhibit 1 was admitted into

evidence. The transcript of the proceedings was filed with the Division of

Administrative Hearings on January 22, 1991. The parties waived the

requirements of Rule 28-5.402, Florida Administrative Code, and were granted

twenty days from the filing of the transcript within which to file their

proposed recommended orders.

The parties' proposed recommended orders have been considered in the

preparation of this order. Specific rulings on the proposed findings of fact

are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence

received at the hearing, the following findings of fact are made:

1. The Department is authorized pursuant to Chapter 479, Florida Statutes,

to regulate outdoor advertising signs.

2. The Respondent owns or controls an outdoor advertising sign (subject

sign) located on Fairbanks Avenue which faces I 4 and which is 480 feet from the

centerline of I 4.

3. The sign face and direction of the subject sign are visible from I 4

following that route as it is normally traveled, i.e. on the main-traveled way.

4. The subject sign is no more than 480 feet from the interchange at

Fairbanks and I 4.

5. The subject sign was erected in June, 1979, when SR 424 was not

designated a federal aid primary road and a state permit was not required. On

May 17, 1979, the Department's then district sign coordinator issued a letter to

Respondent in response to Creative Media's sign permit application which

provided that "a state permit is not required at this time." (e.s.)

6. The Respondent's application in 1979 specified that the sign location

was not within city limits which is presumed true for purposes of this record.

Further, the 1979 application specified that the sign would be located .1 of a

mile (presumably 528 feet) from the intersection. That description of the

proposed sign is also presumed true.

7. Subsequently, Fairbanks became a part of the state highway system and a

requirement for outdoor advertising permits for signs erected along that roadway

became effective. The sign face for which the present permit is sought is

within 500 feet of the I 4 interchange.

8. On January 30, 1990, Inspector Dollery photographed the subject sign

which contained the following verbiage: "ENRICH YOUR LIFE. Barclay Place Rental

Apartments at Heathrow". When Inspector Dollery visited the location on January

3 and 4, 1991, the sign face was painted white with only a telephone number

(425-5100) depicted.

9. On February 5, 1990, the Department's current district outdoor

advertising administrator issued a notice of alleged violation regarding the

subject sign.

10. On February 26, 1990, the Respondent filed an application for a permit

for the sign face in dispute. The 1990 application acknowledged that the sign

was 480 feet from the I 4 intersection.

11. The Department returned the application as not meeting the spacing

requirements for signs facing I 4 and for being less than 500 feet from the

interchange.

12. POA Acquisition, an outdoor advertising company, holds permits for

signs located on I 4 which are within 1500 feet of the subject sign.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of these proceedings.

14. Section 479.01, Florida Statutes, provides, in pertinent part:

(1) "Business of outdoor advertising" means

the business of constructing, erecting,

operating, using, maintaining, leasing, or

selling outdoor advertising structures, outdoor

advertising signs, or outdoor advertisements.

(2) "Commercial or industrial zone" means an

area within 660 feet of the nearest edge of

the right-of-way of the interstate or

federal-aid primary system zoned for

commercial or industrial use under authority

of state law.

(3) "Department" means the Department of

Transportation.

(4) "Erect" means to construct, build, raise,

assemble, place, affix, attach, create, paint,

draw, or in any other way bring into being or

establish; but it does not include any of the

foregoing activities when performed as an

incident to the change of advertising message

or customary maintenance or repair of a sign.

(5) "Federal-aid primary highway system" means

the existing, unbuilt, or unopened system of

highways or portions thereof designated as the

federal-aid primary highway system by the

department.

* * *

(7) "Interstate highway system" means the

existing, unbuilt, or unopened system of

highways or portions thereof designated as the

national system of interstate and defense

highways by the department.

* * *

(12) "Nonconforming sign" means a sign which was

lawfully erected but which does not comply with

the land use, setback, size, spacing, and lighting

provisions of state or local law, rule, regulation,

or ordinance passed at a later date or a sign which

was lawfully erected but which later fails to

comply with state or local law, rule, regulation,

or ordinance due to changed conditions.

* * *

(14) "Sign" means any combination of structure

and message in the form of an outdoor sign,

display, device, figure, painting, drawing,

message, placard, poster, billboard, advertising

structure, advertisement, logo, symbol, or other

form, whether placed individually or on a V-type,

back-to-back, side-to-side, stacked, or

double-faced display, designed, intended, or

used to advertise or inform, any part of the

advertising message or informative contents of

which is visible from any place on the

main-traveled way. The term does not include

an official traffic control sign, official

marker, or specific information panel erected,

caused to be erected, or approved by the department.

(15) "Sign direction" means that direction from

which the message or informative contents are

most visible to oncoming traffic on the

main-traveled way.

(16) "Sign face" means the part of the sign,

including trim and background, which contains

the message or informative contents.

* * *

(19) "State Highway System" means the existing,

unbuilt, or unopened system of highways or

portions thereof designated as the State Highway

System by the department.

* * *

(23) "Visible sign" means that the advertising

message or informative contents of a sign,

whether or not legible, is capable of being

seen without visual aid by a person of normal

visual acuity.

15. Section 479.02, Florida Statutes, provides, in part:

It shall be the duty of the department to:

(1) Administer and enforce the provisions

of this chapter and the agreement between the

state and the United States Department of

Transportation relating to the size, lighting,

and spacing of signs in accordance with Title

I of the Highway Beautification Act of 1965

and Title 23, United States Code, and federal

regulations in effect as of the effective date

of this act;

(2) Regulate size, height, lighting, and

spacing of signs permitted in zoned and unzoned

commercial areas and zoned and unzoned industrial

areas on the interstate highway system and the

federal-aid primary highway system;

* * *

(7) Adopt such rules as it deems necessary or

proper for the administration of this chapter,

including rules which identify activities that

may not be recognized as industrial or commercial

activities for purposes of determination of an

area as an unzoned commercial or industrial area.

16. Section 479.07, Florida Statutes, provides, in part:

(1) Except as provided in s. 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.

* * *

(9)(a) A permit shall not be granted for any

sign for which a permit had not been granted by

the effective date of this act 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.

2. One thousand feet from any other permitted

sign on the same side of the highway, if on a

federal-aid primary highway.

The minimum spacing provided in this paragraph

does not preclude the permitting of V-type,

back-to-back, side-to-side, stacked, or

double-faced signs at the permitted sign site.

17. Section 479.11, Florida Statutes, provides, in pertinent part:

No sign shall be erected, used, operated, or

maintained:

(1) Within 660 feet of the nearest edge of

the right-of-way of any portion of the interstate

highway system or the federal-aid primary

highway system, except as provided in ss.

479.111 and 479.16.

18. Rule 14-10.006, Florida Administrative Code, provides, in part:

(1) The following shall apply to signs for

which the initial valid permit application was

submitted on or after July 1, 1984:

* * *

(b) Spacing.

* * *

4. No two permitted structures shall be spaced

less than one thousand five hundred (1,500)

feet apart on the same side of an interstate highway.

* * *

(2) The criteria for regulating signs that were

conforming on July 1, 1984 shall be as provided

in Rule 14-10.009 of this chapter.

19. Rule 14-10.009, Florida Administrative Code, established the agreement

between the State of Florida and the U.S. Department of Transportation. That

rule specified that signs were not to be erected within 500 feet of an

Interstate highway interchange when outside incorporated towns and cities.

20. Based upon the foregoing, and presuming the Respondent was truthful in

the application filed in 1979, it is clear that in 1979 the subject sign face

was to be erected 528 feet from the interchange in an unincorporated area along

a roadway which was not otherwise state controlled for outdoor advertising

signs. The Department's agent correctly concluded that a state permit for the

sign was not required since Fairbanks was not then considered part of the state

roadway system. Further Department action was not required.

21. In fact, however, Respondent constructed the sign less than 500 feet

from the interchange. In accordance with the agreement reached in 1972 with the

U.S. Department of Transportation, the Department should have notified the

Respondent that the sign location was not acceptable as it violated the

provision requiring 500 feet spacing from the interchange in the unincorporated

area.

22. Thus, the essential issue in this case is then whether the Department

is now estopped from asserting the violation established in this case. Estoppel

requires a showing of the following elements: (1) A representation as to a

material fact that is contrary to a later-asserted position; (2) reliance on

that representation; and (3) a change in position detrimental to the party

claiming estoppel, caused by the representation and reliance thereoni-State

Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA

1986). The Respondent has not established that the Department issued a

representation that is contrary to a later-asserted position. Presumably, the

Department was acting on the information contained in the 1979 application when

it issued the letter dated May 17, 1979. If the allegations of that application

were accurate, the Department correctly indicated that a state permit was not

required at that time.

23. The issue then becomes, what caused the Department to delay in

determining that the sign was within the prohibited distance of the Interstate

highway interchange? And, whether that delay constitutes a "representation"

upon which Respondent relied. The answers to these questions must be in the

negative. Creative Media had already constructed the sign face (contrary to the

application specifics) and had only relied on the representation that Fairbanks

was not then a Federal Aid Primary (which meant a permit was not then required).

That fact, Fairbanks is not a Federal Aid Primary, is still accurate. The

Department is not estopped from requiring that this sign comply with the spacing

requirement of 500 feet from the I 4 interchange. Thus the Department has

established that the subject sign is in violation of the requirements of Rule

14-10.006, Florida Administrative Code.

24. As to its request for a permit for the subject sign, Creative Media

has not shown that the subject sign face could meet that requirement.

25. Since the sign cannot be permitted for the foregoing reason, no

conclusion is reached as to whether the subject sign is "on" I 4 for the purpose

of meeting spacing requirements for signs along that roadway.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED:

That the Department of Transportation enter a final order finding the

subject sign in violation of the rule as set forth in the notice of alleged

violations dated February 5, 1990, and denying the permit application of the

Respondent.

DONE and ENTERED this ____22nd__ day of April, 1991, in Tallahassee, Leon

County, Florida.

____________________________

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of April, 1991.

APPENDIX TO CASE NO. 90-2193T

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 3 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

The six unnumbered paragraphs are addressed in the order presented.

1. The first paragraph is accepted.

2. The second paragraph is accepted.

3. The first sentence of the third paragraph is accepted. The second

sentence of the third paragraph is rejected as contrary to the weight of the

credible evidence or irrelevant if intended to establish that a DOT official

told Mr. Fekete to retain paperwork.

4. The fourth paragraph is rejected as contrary to the weight of the credible

evidence.

5. If the sign had been constructed as represented on the application, the

fifth paragraph could be accepted; however, Respondent did not build the sign as

stated in the 1979 application nor can it be determined from this record whether

the spacing requirements along I 4 could have been met in 1979. Certainly, for

a sign facing on Fairbanks, the spacing requirements could have been met. The

distance from the interchange is ultimately why Respondent's application would

have failed in 1979 if accurately requested. Consequently, as drafted, the

fifth paragraph must be rejected as contrary to the weight of the evidence.

6. The sixth paragraph is accepted.

COPIES FURNISHED:

Vernon L. Whittier, Jr.

Assistant General Counsel

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Gerald S. Livingston

Kreuter & Livingston, P.A.

200 East Robinson Street

Suite 1150

Orlando, Florida 32801

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

ATTN: Eleanor F. Turner, M.S.58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams

General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.