Wainwright v. State, Department of Transp., BI-435

• Decision Date: 22 April 1986
• Docket Number: No. BI-435,BI-435
• Citation: 488 So.2d 563,11 Fla. L. Weekly 938
• Parties: 11 Fla. L. Weekly 938 Jack M. WAINWRIGHT, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

Page 563

488 So.2d 563

11 Fla. L. Weekly 938

Jack M. WAINWRIGHT, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.

No. BI-435.

District Court of Appeal of Florida First District.

April 22, 1986.

W. Kirk Brown, Tallahassee, for appellant.

Maxine F. Ferguson, Tallahassee, for appellee.

MILLS, Judge.

Jack M. Wainwright appeals from the revocation by the Department of Transportation (DOT) of his outdoor advertising permits, pursuant to Section 479.08, Florida Statutes (1984 Supp.). We reverse.

In 1972, in order to "remain eligible to receive the full amount of all Federal-Aid highway funds to be apportioned to it on or after January 1, 1968," the State of Florida agreed to make provisions "for effective control of the erection and maintenance ... of outdoor advertising signs ... which are within six hundred and sixty (660) feet of the nearest edge of the right of way and visible from the main travelled way." To that end, Section 479.11(1), Florida Statutes, provides that "no sign shall be erected, used, operated, or maintained within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system ..." except in commercial unzoned areas. Section 479.111(2).

Rule 14-10.09(I)(1)(B), F.A.C., defines "unzoned commercial area" as an area "within 660 feet of the nearest edge of the right of way ... in which there is located one or more commercial activities." The highlighted term is defined neither by rule or statute.

Anyone desiring to erect or maintain a sign on the interstate must first obtain a permit from DOT. Section 479.07(1). It was pursuant to this requirement that Wainwright applied for the subject permits in 1981. Millender, then an outdoor advertising inspector for DOT, inspected the proposed site off of Interstate 10 in Gadsden County for the purpose of determining its compliance with the zoning, distance and proximity to a "commercial activity" requirements of Chapter 479. The activity relied on by Wainwright was the operation of Imperial Nurseries, a business which grows ornamental shrubs above-ground for shipment to out-of-state markets. Imperial trucks in its own soil mixture, trucks out approximately 400 semi-truckloads of shrubs per year and employs 130 people. It was undisputed that the operation has not changed in character since 1981.

Millender, to whom, as stated above, DOT provided no rule or statutory guidelines for identifying a "commercial activity," determined "by looking at the site" that Imperial's operation qualified as such an activity. Kelley, the district administrator of outdoor advertising for DOT and Millender's supervisor, was aware of the nature of the "commercial activity" relied on. Although Kelley made no specific inquiry of his superiors regarding the commercial characterization of the activity for the purposes of Wainwright's applications, he had previously done so when another applicant relied on Imperial and had been informed by district right-of-way administrator Alfes that the permit could be issued. Kelley's signature appears on Wainwright's approved applications.

DOT renewed Wainwright's sign permits annually and he paid the appropriate fees therefor, until October 1984, when Wainwright was served with notice that his signs violated Chapter 479 in that they were in an area "not zoned or unzoned commercial." Wainwright requested and received an administrative hearing on these notices, during which DOT maintained that at the time of Wainwright's applications it had erroneously characterized Imperial's operation as "commercial," when in fact it fell under the excluded category of "agricultural activity" (also undefined by rule or statute). The "error" was revealed to DOT during a 1984 federal review of sign permits which it had issued. The revocations were initiated, according to DOT, to "establish control over outdoor advertising in the third district or face losing federal highway funds." To that end, current right-of-way administrator Culpepper testified that the agency was "going from a more liberal to conservative construction" of the same law.

Following the hearing, the hearing officer, finding that only DOT's interpretation of the law had changed and not the facts and circumstances under which the permits had originally been granted, recommended that the new interpretation should operate prospectively only and therefore that Wainwright's permits should not be revoked. DOT rejected this recommendation and revoked the permits.

An administrative agency empowered to revoke a permit for reasons specified in a statute may not revoke such permit for any cause not clearly within the ambit of its statutory authority, as statutes which authorize revocation must be strictly construed. Federgo Discount Center v. Dept. of Professional Regulation, Board of Pharmacy, 452 So.2d 1063, 1066 (Fla. 3d DCA 1984); Rush v. DPR, Board of Podiatry, 448 So.2d 26, 27...