STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY HOME BUILDERS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1126T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on April 29, 1989 in Ocala, Florida, a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams heard the case. This Recommended Order is being entered following a review of the correspondence of April 24, 1989 by the representative of the Petitioner which argues in favor of that position, and upon consideration of the proposed recommended order of the Respondent. The Respondent's suggested fact finding is subordinate to the facts found in this Recommended Order. The Petitioner's argument letter is not in the format of proposed fact finding.

APPEARANCES

For Petitioner: J. R. Shoemaker

Executive Officer

Marion County Home Builders Association

409 Northeast 36th Avenue Ocala, Florida 32670

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450 ISSUES

The issues presented concern the question of the entitlement of the Petitioner to the grant of a permit from the Respondent allowing the placement of a banner over State Road 40, the 900 block of State Road 40, at Silver Springs Boulevard in Ocala, Florida. See Rule 14-43.001(1)(g), Florida Administrative Code.

FINDINGS OF FACT

1. On December 22, 1988 Petitioner made application with the Respondent for a permit to erect a banner across State Road 40 in the 900 block, East Silver Springs Boulevard in Ocala, Marion County, Florida. The copy to be placed on that banner would say "18th Annual Marion County Home Builders Assn. Parade of Homes May 13 thru May 21."

2. After considering this permit application, Peter W. Wright, the Respondent's administrator for outdoor advertising in his part of the State, determined to deny the permit. That decision was reached based upon the interpretation by Mr. Wright that under the terms of Rule 14-43.001(1)(g), Florida Administrative Code, the permit could not be granted in that the banner was one of a commercial nature. This decision was reached on November 11, 1988.

   
   

3. A further attempt to explain the reason why the Petitioner felt that it was entitled to this permit was made in the person of its executive officer, J.

   W. Shoemaker, by correspondence of January 23, 1989. Mr. Wright, having examined that correspondence wrote to the Petitioner's executive officer and advised him that the request was being denied because the banner was deemed to be commercial in nature. This decision was reached on February 8, 1989 and it explains the right of the Petitioner to a formal hearing to dispute that choice of denial. On February 20, 1989, the Respondent received a request for formal hearing under the terms of Section 120.57, Florida Statutes. The case was then forwarded to the Division of Administrative Hearings and the final hearing held on the date identified in this Recommended Order.

   
   

4. Marion County Home Builders Association, Inc., Petitioner, is a not- for-profit corporation incorporated under the Laws of Florida, specifically at Chapter 617, Florida Statutes. The corporation is for the benefit of home builders and related industries within its jurisdiction, having in mind mutual advantage and cooperation and collaboration with all fields related to the residential building industry within that jurisdiction, for the construction industry as a whole and to assist the accomplishment of the mutual objectives of the National Association of Home Builders of the United States and Florida Home Builders Association.

   
   

5. The executive officer for the Petitioner stated further that the Petitioner had an interest in assisting its members with legislation in Ocala and Marion County, Florida reference the businesses of its members. Further, it has as its purpose to advertise to the public the skills and wares of the members of the association, in particular through the Parade of Homes for which the banner permit is sought. In that Parade of Homes the association hopes to show the public what the members of the association are involved with as business, and to show the homes themselves. The builders of those homes are at the Parade of Homes show and the public is invited to tour the homes. Not only are the members of the public touring the homes, but also looking at home products being shown by members of the association. The public is charged a nominal fee of $1 to view the homes and in the past, that money has been contributed to the United Way. On one occasion $1400 was given to the United Way. It is expected that the $1 fee collected would be given to the United Way in the 1989 Parade of Homes Show.

   
   

6. While persons are looking at the homes in the parade, they may ask the builders who constructed those homes, questions about the homes and if it is the desire of the consumer public and the builder to make arrangements for a home purchase, then that is an acceptable arrangement from the point of view of the association. Nonetheless, the specific idea which the association has in mind is to advertise the display of homes and home products. Other activities concerning the sale of houses or home products is left to the individual members of the association who have homes and home products in the show.

7. The home builders who are in the association pay dues and constitute one-third of the membership. Other dues-paying members are suppliers within the industry and they constitute approximately two-thirds of the membership.

   
   

8. Petitioner's Exhibit number 2 is a photograph which shows indicating the appearance of the banner in question.

   
   

9. In 1985, Petitioner had been allowed to place a banner in Ocala at a time when Mr. Wright was not in the position of granting permission for banner displays.

   
   

10. Within the last year the Respondent has granted permits to such diverse organizations as the Ocala Civic Theater, the Ocala Shrine Rodeo, the Florida Blueberry Festival/Ocala Blueberry Festival and the Rotary Club of Ocala-Silver Springs Charity Barbeque. Copies of these permits may be found as

    Petitioner's Exhibits numbered 5-8, admitted into evidence. Mr. Wright made the decision to grant those permits.

    
    

11. Related to the Ocala Civic Theater, Wright spoke to someone within that organization and was impressed with the fact that it was, in his mind, for a public purpose. Related to the Ocala Shrine Rodeo, Mr. Wright felt that the Shrine is a charitable organization and aids burn victims. As to the Florida Blueberry Festival/Ocala Blueberry Festival, Mr. Wright felt that the majority of the funds that were collected in this endeavor went to the Chamber of Commerce to assist in civic and charitable events. In the main, he identified that his process of assessment was one of asking whether the function to be advertised by the banner was one in which the primary interest was for charity as opposed to profiting individuals or companies. Examples of permit requests that he has turned down as not being acceptable in that they were commercial in nature would be rock and gem shows, art festivals, sales of equipment for homes and other types of businesses. He has no recollection of ever having to decide the question of whether a Parade of Homes banner was an acceptable purpose to allow the display of a banner across a public roadway, other than the case at issue.

    
    

12. In making decisions about the grant of the permit in the region in question, Mr. Wright does not require the submission of a corporate charter to ascertain whether an organization is a for-profit or not-for-profit corporation.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this cause under the terms of Section 120.57(1), Florida Statutes.

    
    

14. Section 337.407, Florida Statutes, grants the Respondent the authority to make decisions about the appropriateness of the placement of signs within the right-of-way limits of a road such as State Road 40 within Ocala, Marion County, Florida. To that end, rules may be adopted. Rule 14-43.001(1)(g), Florida Administrative Code, speaks to the permission for the placement of temporary banners across the roadway, where it says:

    
    

    Regulation of Signs, Canopies Over Streets and Sidewalks.

    1. Conditions under which overhanging signs or canopies may be placed along and over the state roads within corporate limits

       of municipalities or where curb and gutter construction exists outside municipalities as authorized under Section 335.13, Florida Statutes, are:

       * * *

       (g) That temporary banners may be allowed across the roadway under a permit from the Administrative Services Office of the State of Florida Department of Transportation. In no case will permanent signs or banners be permitted across the roadway nor banners or signs of a commercial or political nature.

       
       

15. In order to gain permission for the right to place the banner in question Petitioner must offer proof which, by the preponderance of evidence, demonstrates entitlement to the permit. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). While it is true that the association which requested this permit is a non- profit organization, and its function is fulfilled when it assists in bringing the public into the homes on display to examine those home products, and that the admission fee that is charged by tradition is for charitable purposes, the principal reason for this show is commercial in nature. It is to assist the members of the association in furtherance of the sale of homes and home products. Consequently, the permit should not be granted.

    
    

16. None of the prior decisions which were pointed out by the Petitioner concerning the grants of permits to various agencies would cause a recommendation of a permit on this occasion as a means of insuring consistency in the Respondent's decision-making.

RECOMMENDATION

Based upon a consideration of the facts and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which denies the banner permit application. DONE and ENTERED this 10th day of May, 1989, in Tallahassee, Leon County,

Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1989.

COPIES FURNISHED:

J. R. Shoemaker, Executive Officer Marion County Home Builders

Association

409 Northeast 36th Avenue Ocala, Florida 32670

Vernon L. Whittier, Esquire Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 89-001126

Orders for Case No: 89-001126