STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. )

) CASE NO. 84-1436T

SEMINOLE PETROLEUM and ) NATIONAL ADVERTISING COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on July 27, 1984, in Deland, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law. These have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, or otherwise erroneous, and have been rejected.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Hayden Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: Frank C. Whigham, Esquire Seminole Post Office Box 1330 Petroleum Sanford, Florida 32772-1330

For Respondent: Gerald S. Livingston, Esquire National Post Office Box 2151 Advertising Orlando, Florida 32802-2151

By Notice of Violation dated March 7, 1981, the Department of Transportation seeks to remove a sign on Interstate approximately 1.07 miles east of State Road 46 in Seminole County, Florida, or to accomplish removal of a flashing light feature of this sign, for alleged violation of statutory and rule prohibitions against flashing lights. The violation notice also alleged that the subject sign failed to display a valid permit tag as required, but this charge was dropped at the hearing. The Respondents contend that the sign in question displays an intermittent light which complies with the applicable statutory and rule provisions.

The Department presented one witness in support of its violation notice, and two exhibits (photographs) which were received in evidence. Each of the Respondents presented one witness in opposition to the charges. The essential facts are not in dispute.

FINDINGS OF FACT

1. The Respondent, National Advertising Company, owns a sign structure located on Interstate 4, 1.07 miles east of State Road 46, in Seminole County. This structure is rented to the Respondent, Seminole Petroleum.

   
   

2. Seminole Petroleum purchased a sign face from a dealer in Atlanta, and it was installed on this structure by National Advertising Company.

   
   

3. The sign face in question was designed as, and is, a single unit having a lighted portion at the bottom which intermittently flashes the price of diesel fuel for sale at the station of Seminole Petroleum. This intermittent light feature has a constant on/off sequence, with the off-period being approximately one second and the on-sequence being approximately two seconds. When on, the brightness is steady, and of average intensity.

   
   

4. The light feature is part of the sign itself, and does not differ from other parts of the copy on the sign.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor pursuant to Chapter 479, Florida Statutes.

   
   

6. Section 479.11(3), Florida Statutes, provides that no advertising sign shall be erected, used or maintained:

   
   

   (3) Which displays intermittent lights not embodied in an outdoor advertising sign, . . .

   
   

7. Section 14-10.06(1)(c)1., Florida Administrative Code, provides that signs may be illuminated, subject to the following restrictions:

   
   

   1. Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.

      
      

8. There was no evidence presented to establish what is meant by the term "embodied in" a sign, as contained in Section 479.11(3), Florida Statutes. The evidence does support a finding that the lighted portion of the sign in question is a part of the sign itself, and thus, arguably, may not violate this statutory proscription.

   
   

9. However, the provisions of Section 14-10.06(1)(c)1, Florida Administrative Code, are more restrictive, and permit only public service information such as time, date, temperature, weather, or similar information. The Respondents contend that the intermittent light on the subject sign denoting the price of diesel fuel is public service information, and thus is permitted by this Rule.

10. However, the price of diesel fuel is not public service information, but is competitive commercial information designed to distinguish the price of this product from prices elsewhere. In a time of shortage, the availability of fuel on a highway might constitute public service information, but presently this condition does not exist. Moreover, in the construction of statutes and rules, where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to the same kind or class of things as are included in the preceding limited or more confining terms. This is the principle of ejusdem generis. Smith v. Nussman, 156 So.2d 680 (Fla. App. 1963), 30 Fla. Jur. 92, Statutes. Using this principle of construction, the price of diesel fuel is commercial information, and is outside the class of public service information such as time, date, temperature or weather. Thus, the Rule quoted above prohibits the intermittent lighting of the price of diesel fuel on a sign adjacent to an interstate highway.

    
    

11. In order to comply with Section 14-10.06(1)(c)1., Florida Administrative Code, the Respondents must eliminate the intermittent light feature from the subject sign. The light must remain on at all times or it must be eliminated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the intermittent light feature of the sign owned by

National Advertising Company on Interstate 4, approximately 1.07 miles east of State Road 46, in Seminole County, be eliminated, or that the subject sign be removed.

THIS RECOMMENDED ORDER entered this 20th day of October, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1984.

COPIES FURNISHED:

Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8061

Frank C. Whigham, Esquire

P. O. Box 1330

Sanford, Florida 32772-1330

Gerald S. Livingston, Esquire

P. O. Box 2151

Orlando, Florida 32802-2151

Docket for Case No: 84-001436

Orders for Case No: 84-001436