97-001704 Poz Outdoor Advertising, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, December 17, 1997.

Summary: Location of proposed sign violated the Department's rule on minimum spacing requirements and, therefore, application for sign permit properly denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POZ OUTDOOR ADVERTISING, INC. , )

)

Petitioner , )

)

vs. ) Case No. 97-1704T

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

October 24, 1997, in Fort Pierce, Florida.

APPEARANCES

For Petitioner : Robert S. Cohen, Esquire

Martha J. Edenfield, Esquire

Pennington , Moore, Wilkinson & Dunbar , P.A.

Post Office Box 10095

Tallahassee, Florida 32302

For Respondent : Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Petitioner's

applications to erect a steel monopole which would support a two-

sided outdoor advertising sign to be located west of Interstate

Highway 95 (I-95), 2,244 feet north of I-95's intersection with

Indrio Road, St. Lucie County, Florida, should be approved.

PRELIMINARY STATEMENT

On February 20, 1997, Respondent, Department of

Transportation (Department), notified Petitioner, POZ Outdoor

Advertising, Inc. ( POZ), that its permit applications to erect a

steel monopole which would support a two-sided outdoor

advertising sign to be located west of Interstate Highway 95

(I-95), and 2,244 feet north of I-95's intersection with Indrio

Road, St. Lucie County, Florida, were denied. 1 The predicate for

denial was the Department's conclusion that the proposed site was

within 500 feet of a restricted interchange or intersection at

grade, contrary to the provisions of Rule 14-10.006(1)(b)5,

Florida Administrative Code.

POZ filed a timely petitioner for formal administrative

hearing to contest the Department's decision. Consequently, on

April 2, 1997, the Department forwarded the matter to the

Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a formal hearing pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

Here, POZ does not contest, and indeed the proof confirms,

that the proposed site was within 500 feet of a restricted

interchange or intersection at grade, as found by the Department.

Rather, the issues raised by Petitioner and its position are

stated in the prehearing stipulation as follows:

The issue for determination in this

proceeding is whether the Department through

its sign inspector, Vana Kinchen, showed

Petitioner how and where to measure distance

for the placement of an outdoor advertising

sign at the site which is the subject of this

proceeding. Petitioner relied upon the

information supplied by Ms. Kinchen and

received approval from St. Lucie County for

placement of the sign subject to approval by

the Department. Petitioner has spent a great

deal of money to lease the property on which

the sign is to be located and has hired

attorneys to pursue this matter. All of

these expenditures were based upon

Petitioner's reliance on the representations

of Ms. Kinchen.

Further, in at least one other instance, at

I-95 and SR 60 on the west side exit, the

Department has allowed the placement of an

outdoor advertising sign within 500 feet of a

restricted intersection in an unincorporated

portion of Indian River County.

Finally, the Department, under Vana

Kinchen's signature, issued a permit for a

sign to be located on the identical site at

issue in this proceeding to Adcon Outdoor

Advertising, Inc., Petitioner's former

company.

Here, "Petitioner's theories for recovery are twofold:

1) that the Department allowed a nonconforming sign to be erected

at State Road 60 and I-95; and 2) that Petitioner relied to its

detriment on representations made by an agent or employee of the

Department concerning the proposed location of its outdoor

advertising sign, and, therefore, the Department should be

estopped from asserting that Petitioner's sign is nonconforming."

(Petitioner's Proposed Recommended Order, at page 8.)

The Department's position, as stated in the prehearing

stipulation, is as follows:

POZ's outdoor advertising sign is proposed

to be located within 500 feet of a restricted

interchange or intersection at grade pursuant

(sic) [contrary] to Rule 14-10.006(1)(b )5,

Florida Administrative Code. The Department

has not granted outdoor advertising permits

in violation of this Rule.

The Department through its employee Vana

Kinchen, did not show Petitioner how and

where to measure for the placement of an

outdoor advertising sign at this site which

is the subject of this proceeding as alleged.

Therefore, there were no representations made

by the Department upon which the Petitioner

can show reliance. Further, the Department

has never approved a permit for the identical

outdoor advertising site which is the subject

of this proceeding.

Lastly, the Department has not approved the

location of an outdoor advertising sign

located within 500 feet of the interchange of

SR 60 and I-95. It has come to the attention

of the Department that the sign currently

located at the interchange of SR 60 and I-95

was built without the knowledge and consent

of the Department. As a result, the

Department has issued a Notice of Violation

for the sign because it was erected

illegally.

At hearing, Petitioner POZ, presented the testimony of

Richard Pozniak, Barbara Pozniak, and Vana Kinchen, and its

Exhibits 1A-1J, 2, and 3 were received into evidence. Respondent

called Harry Ketcham as a witness, and its Exhibits 1 through 9

were received into evidence.

The transcript of the hearing was filed November 17, 1997,

and the parties were accorded ten days from that date to file

proposed recommended orders. The parties elected to file such

proposals, and they have been duly considered in the preparation

of this order.

FINDINGS OF FACT

Preliminary matters

1. Petitioner POZ Outdoor Advertising, Inc. ( POZ), is a

corporation engaged in the business of erecting and maintaining

outdoor advertising signs. The principals of POZ are Richard

Pozniak and his wife, Barbara.

2. Respondent, Department of Transportation (Department) is

a state agency charged with, inter alia , the responsibility to

regulate outdoor advertising, under the provisions of Chapter

479, Florida Statutes, and Chapter 14-10, Florida Administrative

Code.

3. On February 17, 1997, POZ applied with the Department

for permits to erect a monopole sign which would support a two-

sided billboard to be located west of I-95, and 2,244 feet north

of the intersection of I-95 and Indrio Road, St. Lucie County,

Florida.

4. The Department reviewed the applications, and on

February 20, 1997, gave notice to POZ that the applications were

denied because the "[s ] ite is within 500 feet of a restricted

interchange or intersection at grade (S. #14-10.006(1)(b)5,

FAC)." POZ filed a timely request for a formal hearing to

challenge the Department's decision, and these proceedings duly

followed.

Matters at issue

5. POZ did not contend, and indeed offered no proof at

hearing to demonstrate, that the proposed site was not, as found

by the Department, within 500 feet of a restricted interchange or

intersection at grade, as proscribed by Rule 14-10.006(1)(b )5,

Florida Administrative Code. 2 Rather, as noted in the

preliminary statement, POZ contends the Department should be

precluded from applying the Rule's spacing provisions as a basis

for denial of the requested permits based on a theory of estoppel

or a theory of inconsistent application of the Rule's spacing

requirements.

POZ's estoppel theory

6. To accept POZ's estoppel theory, one must accept, as

offered, Mr. Pozniak's version of events which he avers

transpired in 1990, when he conducted his outdoor advertising

business through AdCon Outdoor Advertising, Inc. ( AdCon) . 3

According to Mr. Pozniak, in 1990 he met with Vana Kinchen, then

a sign inspector with the Department, to establish the proper

location of a billboard that AdCon proposed to permit. Again,

according to Mr. Pozniak, Ms. Kinchen helped him measure the

site, and identified the same location at issue in this

proceeding (2244 feet north of the intersection of I-95 and

Indrio Road) as an appropriate placement for a billboard.

7. Following Ms. Kinchen's advice as to location,

Mr. Pozniak avers that he applied for permits on behalf of AdCon

to erect a monopole sign which would support a two-sided

billboard to be located at the exact same site that is at issue

in this proceeding. Those applications, according to Mr.

Pozniak, were approved and Department tags issued; however, the

sign was not erected within 270 days after the permit issued, as

required by Section 479.05(3)(5)(b), Florida Statutes, and the

permits became void.

8. Having carefully considered the proof in this case, it

must be concluded that Mr. Pozniak's version of the events

surrounding AdCon's permitting activities in 1990 is less than

credible. Rather, the persuasive proof demonstrates that AdCon's

application for permits to erect a billboard at the site at issue

in this proceeding were denied and it is most unlikely that Ms.

Kinchen ever advised Mr. Pozniak that such site was a proper

location for a billboard.

9. Regarding AdCon's permitting activities in 1990, the

proof demonstrates that on April 6, 1990, AdCon filed

applications (inexplicably dated May 6, 1990) with the Department

to erect a monopole sign which would support a two-sided

billboard to be located west of I-95, and 3050 feet north of the

intersection of I-95 and Indrio Road. Consistent with the

requirement of Section 479.04(3)(b), Florida Statutes, the

applications included a separate statement from the local

government that the proposed signs complied with local government

requirements. Those applications were approved and, on May 3,

1990, the Department's tag numbers BB-457-35 (for the north

facing sign) and BB-458-35 (for the south facing sign) were

issued.

10. Subsequently, on November 9, 1990, AdCo filed

applications dated November 7, 1990, with the Department to erect

a monopole sign which would support a two-sided billboard to be

located west of I-95, and 2,244 feet north of the intersection of

I-95 and Indrio Road (the location at issue in this case). Those

applications were rejected by the Department on November 15,

1990, because they violated the spacing requirements of Section

479.07(9)(a )1, Florida Statutes, which prohibits the issuance of

a permit unless the sign is located at least 1,500 feet from any

other sign on the same side of an interstate highway. Notably,

as the Department observed at that time, those applications

conflicted with the previously approved applications of AdCon for

the site located at 3,050 feet north of the intersection of I-95

and Indrio Road, and the permittee still had until January 28,

1991, to erect those signs. The applications were also rejected

by the Department because they failed to include a statement from

local government as required by Section 479.04(3)(b), Florida

Statutes, that the proposed signs complied with local government

requirements. Rather, what AdCon submitted was a copy of the

local government approval it had secured for the location

permitted by the Department on May 3, 1990. That documentation

did not, as AdCon knew or should have known, meet the

requirements for the new location.

11. Clearly, the Department did not previously permit the

site at issue in this case, and it is most unlikely that

Ms. Kinchen ever affirmatively advised Mr. Pozniak as to the

suitability of the site. In so concluding, Mr. Pozniak's

testimony, as well as Petitioner's Exhibit 3 (what purports to be

copies of applications, dated November 7, 1990, by AdCon for the

site at issue in this proceeding, and purportedly approved by the

Department) have been carefully considered. However, when

compared with the other proof of record it must be concluded that

Petitioner's Exhibit 3 is a fabrication , 4 and that Mr. Pozniak's

testimony on the subject is not credible or worthy of belief.

POZ's theory of inconsistency

12. Mr. Pozniak offered testimony at hearing concerning two

outdoor advertising signs at the intersection of I-95 and State

Road 60 which he opined did not conform with the Department's

spacing requirements and, therefore, represent inconsistent

application of the District's rule. The persuasive proof is,

however, to the contrary.

13. The first sign, located within 500 feet of the

interchange, was in existence when the Department's "ramp rule"

regarding spacing requirements became effective and, accordingly,

its presence was grandfathered. However, at some time following

the enactment of the ramp rule, the owner replaced the sign. At

that time, the sign became nonconforming and the Department, as

soon as it became aware of the nonconformity, commenced an action

to secure the sign's removal.

14. The other sign alluded to by Mr. Pozniak, and

identified in Petitioner's Composite Exhibit 1, is owned by

Division Street, Inc., and, contrary to Mr. Pozniak's testimony,

that sign complies with the Department's spacing requirements and

was properly permitted.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569 and 120.57(1), Florida

Statutes (Supp. 1996).

16. As the applicant, the burden rests on the Petitioner to

demonstrate, by a preponderance of the evidence, entitlement to

the requested permits. Department of Transportation v. J.W.C.,

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). The applicant, however, need address only

those issues raised in the Department's notice of intent to deny

the subject applications. Department of Transportation v. J.W.C.,

Co., Inc. , supra , and Woodholly Associates v. Department of

Natural Resources , 451 So. 2d 1002 (Fla. 1st DCA 1984).

17. Here, the Department proposed to deny Petitioner's

applications based on its conclusion that the proposed sign

location violated the minimum spacing requirements established by

Rule 14-10.006(1)(b), Florida Administrative Code. Pertinent to

this case, the Rule provides:

5. Outside incorporated towns and cities,

no structure may be located adjacent to 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 on an interstate highway.

18. As heretofore noted, Petitioner did not contest the

Department's conclusion , 5 but contended that the Department

should be estopped from asserting the proposed location was

nonconforming, as required by the rule, because of certain

representations made by a Department employee regarding the

location and, moreover, that the Department should be precluded

from applying the rule because, by allowing a nonconforming sign

to be erected at State Road 60 and I-95, the Department has not

consistently applied the spacing requirements established by the

rule.

19. The elements necessary to establish estoppel against

the state are generally recognized as: "(1) a representation by

an agent of the state as to a material fact that is contrary to a

later asserted position; (2) reasonable reliance on the

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

party claiming estoppel caused by the representation and reliance

thereon." Harrish v. Department of Administration , 577 So. 2d

1363, 1366 (Fla. 1st DCA 1991). Accord, Dolphin Outdoor

Advertising v. Department of Transportation , 582 So. 2d 709 (Fla.

1st DCA 1991), and Tri-State Systems, Inc. v. Department of

Transportation , 500 So. 2d 212 (Fla. 1st DCA 1986), rev. denied ,

506 So. 2d 1041 (Fla. 1987).

20. Here, as noted in the findings of fact, and contrary to

the position taken by Petitioner, the credible proof demonstrated

that the Department did not previously permit a sign at the

proposed site and no agent of the Department was persuasively

shown to have represented to Petitioner that the proposed site

complied with existent spacing requirements. Consequently, there

being no representation that the site complied with the

Department's spacing requirements, Petitioner's estoppel argument

must fail.

21. Finally, Petitioner's argument that the Department

should be precluded (based on some unarticulated legal theory)

from denying the requested permit because the Department failed

to consistently apply its spacing requirements, must also fail.

First, as heretofore noted, and contrary to the position taken by

Petitioner, the credible proof demonstrated that the Department

did not inconsistently apply the spacing requirements established

by rule. Moreover, even if the proof demonstrated that the

Department had approved a project that failed to meet the spacing

requirements established by rule, such error would not justify

approval of Petitioner's application. See State v. Jenkins , 469

So. 2d 733, 734 (Fla. 1985), ("[A ] gency rules and regulations,

duly promulgated under the authority of law, have the effect of

law."); Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995), (An agency must comply with its own rules.") ; Decarion v.

Martinez , 537 So. 2d 1083, 1084 (Fla. 1st DCA 1989), ("Until

amended or abrogated, an agency must honor its rules.") Indeed,

the Department should not approve a project that does not meet

the criteria for approval simply because, in derogation of its

responsibility, it erroneously approved projects in the past. To

the contrary, the Department should studiously avoid repeating

any such mistakes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered denying the

subject applications for outdoor advertising sign permits.

DONE AND ENTERED this 17th day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

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 [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of December, 1997.

ENDNOTES

1/ Two permit applications were required because the proposed

sign was two-sided, with one side facing north and one side facing

south.

2/ The proof which addressed the issue was offered by the

Department or was contained in the parties' prehearing

stipulation. That proof was consistent with the Department's

initial conclusion.

3/ Mr. Pozniak and his wife, Barbara, owned AdCon, which they

operated from 1987 until 1996. Thereafter, apparently, they did

business through POZ.

4/ Petitioner's Exhibit 3 is a crudely altered copy of the

applications, dated May 6, 1990, that were submitted and approved

for the site located 3050 feet north of the intersection of I-95

and Indrio Road. On Petitioner's Exhibit 3, the date of the

original application (5/6/90) has been changed to read (11/7/90);

the distance from the nearest intersection has been changed from

3050 feet to 2244 feet; the distance from the nearest permitted

sign has been changed from 1000 feet to 1500 feet; and the date of

sign erection has been changed from 4/15/90 to 12/15/90. The fee

tendered was also altered to reflect the fee that would have been

due in November, as opposed to April when the application dated

May 6, 1990, was filed. Based on the proof, it must be concluded,

more likely than not, that Petitioner's Exhibit 3 is a fraudulent

document; and that Mr. Pozniak's testimony is, at best, lacking in

candor or credibility.

5/ Indeed, Petitioner offered no proof that the proposed location

conformed with the spacing requirements of Rule 14-10.006(1)(b)5,

Florida Administrative Code, and the proof that was offered,

supported the Department's initial decision that the proposed

location was nonconforming.

COPIES FURNISHED:

Robert S. Cohen, Esquire

Martha J. Edenfield, Esquire

Pennington, Moore, Wilkinson

& Dunbar, P.A.

Post Office Box 10095

Tallahassee, Florida 32302

Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary

Department of Transportation

Attn: Diedre Grubbs

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

Mail Station 58

562 Suwannee Street

Tallahassee, Florida 32399-0458

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.