99-002863 Department Of Transportation vs. Ak Media Group, Inc. Status: Closed Recommended Order on Tuesday, December 28, 1999.

Summary: County`s work stop order prevented timely completion of sign and justified the application of the equitable tolling doctrine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2863T

)

AK MEDIA GROUP, INC. )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 2, 1999, by video teleconference between

Tallahassee and Fort Lauderdale, Florida, before Claude B.

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sheauching Yu, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Mark S. Ulmer, Esquire

11900 Biscayne Boulevard, Suite 612

Miami, Florida 33181

STATEMENT OF THE ISSUES

Whether Respondent's outdoor advertising permits BU 839 and

BU 840 became void pursuant to the provisions of Section

479.07(5)(a), Florida Statutes.

PRELIMINARY STATEMENT

On August 18, 1998, Petitioner issued to Respondent two

state outdoor advertising permits to build and maintain a two-

faced sign at a specified location in Palm Beach County. One

permit was for the sign facing north and the other was for the

sign facing south. On May 21, 1999, Petitioner issued a notice

to Respondent that the two permits were void because a completed

sign had not been erected at the permitted location within 270

days from the issuance of the permits. In reaching that

determination, Petitioner relied on the provisions of Section

479.07(5)(a), Florida Statutes, and the definition of the term

"completed sign" contained in Rule 14-10.0011(2)(c), Florida

Administrative Code. Respondent timely challenged Petitioner's

determination that the permits are void, the matter was referred

to Division of Administrative Hearings, and this proceeding

followed.

At the formal hearing, Petitioner presented the testimony

of Ralph Paciello and Fred Harper, both of whom are employees of

the Department of Transportation. Petitioner presented three

exhibits, each of which was admitted into evidence. Official

recognition was taken of all relevant statutes and rules.

Respondent presented the testimony of Greg Hibbs, an

employee of Respondent. Respondent presented pre-marked

exhibits 1 through 10, 12 through 25, 27 through 37 (these were

re-marked as composite exhibit 44), and 38 through 43, each of

which was accepted into evidence.

A Transcript of the proceedings was filed on October 1,

1999. Petitioner and Respondent filed proposed recommended

orders, which have been duly-considered by the undersigned in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. On August 18, 1998, Petitioner issued valid state

outdoor advertising permit numbers BU 839 and BU 840 to

Respondent for a sign with two faces, one facing north and the

other facing south, to be erected at a specified location on the

west side of State Road 5, 2000 feet north of PGA Boulevard in

Palm Beach County, Florida.

2. Section 479.07(5)(a), Florida Statutes, provides, in

pertinent part, as follows:

. . . If the permittee fails to erect a

completed sign on the permitted site within

270 days after the date on which the permit

was issued, the permit will be void, and the

department may not issue a new permit to

that permittee for the same location for 270

days after the date on which the permit

became void. 1/

3. Petitioner adopted the following definition at Rule 14-

10.001(2)(c), Florida Administrative Code, on June 28, 1998:

(c) "Completed Sign", for the purposes

of Section 479.07(5)(a), Florida Statutes,

means the erection of the sign structure as

described in the permit, as well as

attachment of the facing to the structure,

and the posting of a message to the facing.

4. Petitioner asserts the permits became void by operation

of law on May 16, 1999, because that date is 271 days from

August 18, 1998, the date the subject permits were issued. As

of May 16, 1999, no completed sign had been erected by

Respondent on the permitted site as the term "completed sign"

has been defined by Rule 14-10.001(2)(c), Florida Administrative

Code. Petitioner notified Respondent on May 21, 1999, that the

subject permits were void.

5. No representative of Petitioner misled or lulled

Respondent into inaction at any time pertinent to this

proceeding.

6. Palm Beach County, the local permitting agency,

requires a "Special Permit" before an outdoor advertising sign

can be erected within its jurisdiction. Respondent applied for

such a Special Permit for the subject signs on March 10, 1998.

Palm Beach County issued Respondent a Special Permit for the

subject location, but imposed a special condition, to which

Respondent agreed. The special condition required Respondent to

remove one of its other signs worth approximately $100,000.

7. In addition to the Special Permit, Respondent was

required to obtain from Palm Beach County a building permit for

this project. That building permit was issued May 14, 1998.

8. Respondent applied to Petitioner for the two permits

that are at issue in this proceeding on May 18, 1998. On

June 16, 1998, Petitioner denied Respondent's application on the

grounds that additional information was needed. After the

additional information was supplied, the subject permits were

issued on August 18, 1998.

9. On November 15, 1998, Respondent finished the site work

that had to be done before the sign could be constructed.

10. The Palm Beach County building permit expired 160 days

after it was issued. Respondent secured the renewal of that

permit on January 20, 1999.

11. Petitioner placed orders for the sign construction in

February 1999. The structural components arrived at the

permitted site on April 5, 1999. Between April 5 and April 9,

1999, a 25-foot deep hole was dug, into which the 47-foot long,

4-foot diameter steel monopole was lowered by crane, and six

tons of concrete were poured to construct a foundation and

support for the sign superstructure. On April 9, 1999, Palm

Beach County approved the final inspection of the excavation and

foundation. On April 13, 1999, the superstructure of the sign

was lifted onto the steel monopole by crane and installed,

thereby completing construction of the two-faced sign. 2/ The

cost of this construction totaled approximately $50,000.

12. On April 14, 1999, Palm Beach County issued a stop

work order (red tag) to Respondent for failure to post permit

and plans at the job site and because a subcontractor blocked

traffic with a crane that was being used to erect the sign

structure. This red tag prevented Respondent from doing any

further work on the two-faced sign. Had Respondent violated the

red tag, it would have been exposed to a civil penalty of $250

per day and misdemeanor charges.

13. Shortly after it learned that a red tag had been

issued on April 14, 1999, representatives of Respondent met with

Palm Beach County building officials and disputed their

rationale for the red tag.

14. Believing that the red tag issue with Palm Beach

County had been resolved, Respondent entered into contracts with

advertisers for the respective faces of the two-faced sign, one

on April 22 and the other on May 11, 1999. It would have taken

less than a day to install advertising copy on these signs.

15. Palm Beach County did not lift its red tag on these

signs until July 21, 1999. On August 9, 1999, Palm Beach County

approved the two-faced sign on final inspection.

16. Respondent placed advertising copy on both faces of

the sign on August 9, 1999.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

18. Petitioner's rule defining the term "completed sign"

is not being challenged in this proceeding. Applying that

definition to the facts of that case, it is concluded that there

was no completed sign at the permitted location within 270 days

after the permits were issued by Petitioner.

19. Respondent's position that permits BU 339 and BU 340

are not void is based on the following arguments:

(a) that it did not fail to erect a

completed sign within the meaning of the

statute because it was prevented from doing

so by Palm Beach County's red tag,

(b) that the doctrine of collateral

estoppel estops Petitioner from asserting

that the permits are void, and/or

(c) that the doctrine of equitable

tolling should be applied to extend the 270

day deadline for completion of the signs.

20. Respondent's argument that it did not fail to timely

complete the sign within the meaning of Section 479.07(5)(a),

Florida Statutes, because it was prevented from doing so by the

red tag is rejected. An accepted definition of the term "fail"

is to be unsuccessful in attempting to do something. See The

American Heritage Dictionary of the English Language . That

definition of the term "fail" does not require that the lack of

success be the fault of the entity making the attempt. The

evidence clearly established that Respondent was not successful

in timely completing the signs.

21. Respondent failed to establish that the doctrine of

collateral estoppel should be applied to estop Petitioner from

asserting that the permits are void. Succinctly stated, the

elements of equitable estoppel are as follows: (a) a

representation as to a material fact that is contrary to a

later-asserted position; (b) reliance on that representation;

and (c) a change in position detrimental to the party claiming

estoppel, caused by representation and reliance thereon. See

Dolphin Outdoor Advertising v. Department of Transportation , 582

So. 2d 709, 710-11 (Fla. 1st DCA 1991). Respondent did not

establish those elements. Moreover, the acts Respondent relies

upon in attempting to establish the elements of that doctrine

are those of Palm Beach County, not those of Petitioner.

Respondent has cited no persuasive authority for its novel

argument that the acts of Palm Beach County can be used to

establish the elements of collateral estoppel against the

Florida Department of Transportation.

22. In Machules v. Department of Administration , 523 So.

2d 1132 (Fla. 1988), the Supreme Court observed, at 1134, that

the doctrine of equitable tolling

. . . has been applied when the

plaintiff has been misled or lulled into

inaction, has in some extraordinary way been

prevented from asserting his rights, or has

timely asserted his rights mistakenly in the

wrong forum.

23. An administrative body should exercise its discretion

to apply the doctrine of equitable tolling only under compelling

circumstances. It is concluded that such compelling

circumstances exist in this case.

24. Respondent expended considerable sums on these signs

and was working on a schedule to timely complete the signs when

Palm Beach County intervened. Respondent would have undoubtedly

completed the two-faced sign within the 270 day period had not

Palm Beach County prohibited further work on the sign structure

at the very end of its completion. Palm Beach County's

intervention should be considered an extraordinary circumstance

that justifies the application of the doctrine of equitable

tolling to toll the running of the 270 day period during the

time the Respondent was prohibited from working on the structure

because of the red tag. Petitioner should considered the harm

to Respondent if the doctrine is not applied. To require

Respondent to remove the sign structure under the facts of this

case would be a harsh, inequitable result that would serve no

valid public purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order that

applies the doctrine of equitable tolling and declares permits

BU 839 and BU 840 valid.

DONE AND ENTERED this 28th day of December, 1999, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative

Hearings

this 28th day of December, 1999.

ENDNOTES

1/ Petitioner established that the purpose of this provision

was to prevent sign companies from stockpiling permits.

2/ Section 479.01, Florida Statutes, contains the following

definitions:

(6) "Erect" means to construct, build,

raise, 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.

* * *

(FORMAT)

(17) "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 or automatic changeable

facing, 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 supporting or displacing a

message or informative contents.

* * *

(FORMAT)

(21) "Sign Structure" means all the

integrated parts and material, such as

beams, poles, and stringers. . . .

COPIES FURNISHED:

Sheauching Yu, Esquire

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Mark S. Ulmer, Esquire

11900 Biscayne Boulevard, Suite 612

Miami, Florida 33181

Thomas F. Barry, Secretary

Department of Transportation

ATTN: James C. Myers

Clerk of Agency Proceedings

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

605 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.