STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2318T

)

CARPET STOP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Port Charlotte, Florida on July 9, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon H. Whittier, Jr., Esquire

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

Tallahassee, Florida 32399-0458

For Respondent: H. Vernon Davids, Esquire

165 W. Green Street Englewood, Florida 34223

STATEMENT OF THE ISSUES

The issue for consideration herein is whether the Respondent's business sign, located north of Pembroke Drive on U.S. Highway 41 in Port Charlotte, Florida, violates Section 479.11(6), Florida Statutes, which prohibits the display of signs using the words "stop" or "danger" adjacent to a specified highway.

PRELIMINARY STATEMENT

On March 28, 1990, counsel for Respondent herein, Carpet Stop, Inc., filed a Petition with the Department of Transportation, (Department), seeking withdrawal of Petitioner's Violation Order dated March 22, 1990, relating to Respondent's business sign as cited therein, and requesting a formal hearing. On April 6, 1990, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and by Notice of Hearing dated May 3, 1990, issued after Respondent's April 27, 1990 response to the Initial Order herein, the undersigned set the case for hearing on July 9, 1990, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Joseph v. Hanrahan, an outdoor advertising inspector for the Department, and James Dunsford, the Department's District I Administrator for outdoor advertising. Petitioner also

introduced Petitioner's Exhibits 1 through 4. Respondent presented the testimony of Merritt L. D'Arcy, a sign installer; Crew A. Blackmon, owner of Respondent corporation; and Allen L. LeBeau, Sheriff of Charlotte County from 1978 to 1984. Respondent introduced Respondent's Exhibits A and B and offered Respondent's Exhibit C1 - C5, business cards, which were not received into evidence.

A transcript was provided and counsel for the Petitioner submitted Proposed Findings of Fact which have been accepted and are incorporated herein. Counsel for Respondent submitted a Memorandum of Agreement which has been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department of Transportation is the state agency responsible for controlling the placement of advertising signs along the rights of way of the highway system in Florida.

   
   

2. On March 22, 1990, John v. Hanrahan, an outdoor advertising inspector for the Department in southwest central Florida was driving south on U.S. Highway 41 in Charlotte County, Florida, when he observed the Respondent's sign, located approximately 100 feet north of Pembroke Drive on the northbound side of the highway. The faces of the sign, which was perpendicular to the highway, were readable from both the north and south. The sign is located approximately

   15 feet east of the eastern edge of the highway. It is not, however, located on the highway right of way. It is adjacent to but outside the northwest corner of the Respondent's parking lot.

   
   

3. The sign is an internally lighted, plastic, double-sided sign on posts. The distance from the ground to the bottom of the sign is at least 15 feet, (the installer says 20 feet), and from the ground to the top of the sign is 32 feet. On both faces of the sign is a replication of an octagonal "stop sign," a traffic control sign, in red with white letters spelling "STOP," and a white border with a black outline around the border. The whole sign is 8 to 10 feet wide and though the installer says the replication is four feet from top to bottom and from side to side, including the border, examination of the photograph of the sign, introduced by the Petitioner, reflects it is bigger than that. The replication is almost as wide as the sign itself which can be seen from 400 feet away to the north and 100 feet away to the south.

   
   

4. Mr. D'Arcy, the individual who installed the sign, claims that due to the height of the sign and its distance up in the air, it does not reasonably appear as a traffic control sign. Before installing the sign, he secured a permit, without objection, from Charlotte County after an application, including the design of the plan, was submitted to the permitting office. He did not, however, submit the installation plan to the state.

   
   

5. Section 479.11(6), Florida Statutes, prohibits the use or maintenance of a sign which uses the words "stop" or "danger", or which is a copy or imitation of an official traffic control sign and which is adjacent to a highway. Mr. Hanrahan, who has worked as an inspector for several years, has cited several other establishments which use the word "stop" in their outdoor signs because they were in violation of the statute. His normal procedure is to talk with the sign owner in an attempt to resolve the problem before issuing a citation. He did that in this case as well, but the owner failed to make the necessary change voluntarily, and he, therefore, issued the citation.

6. The owner of the sign claims he had an almost identical sign outside his former place of business in the area, (a 4 foot stop sign with the word "carpet" on top) prior to 1984 without objection. The former Sheriff of Charlotte County during the period indicated he had received no complaints about that sign during his tenure in office. As a former traffic enforcement officer, considering the instant sign and the circumstances of its placement, he does not believe it could reasonably be mistaken for an official stop sign. The evidence of record indicates to the contrary, however, and as situated, it would appear that the sign constitutes a traffic safety hazard.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes. Section 479.11, Florida Statutes, provides in pari materia, that no sign shall be erected, used, operated or maintained:

(6) Which uses the word "stop" or "danger" or presents or implies the need or requirement of stopping or the existence of danger, or which is a copy or imitation of official signs, and which is adjacent to the right-of-way of any highway on the5tate Highway System, or federal-aid primary highway system.

It is clear that the sign is question is a faithful replication of a stop sign in shape, wordage and color, if not in size and placement. Respondent does not deny that, but claims the location of the sign some 15 feet from the edge of the highway, and the incorporation of other words, (Carpet and Inc.) with the replication of the control device, takes it from within the statutory prohibition. The word, "adjacent" is defined in Webster's New Collegiate Dictionary as:

not distant, having a common border.

Black's Law Dictionary, Fifth Edition defines the word as: lying near or close to, sometimes,

contiguous; neighboring. Adjacent

implies that the two objects are not widely separated, though they may not actually touch.

Clearly, the intent of the legislature in passing the statue in issue was to minimize distractions to motorists on the highways of this state. Equally as clear is the fact that this business sign in issue is designed to catch the attention of the passing motorist so as to attract his patronage. The propriety of the use of the word "stop" on the sign, without more, might be subject to discussion or debate, but the propriety of its use with the shape and coloring of an official traffic sign, (the stop sign), is certainly not.

Sheriff LeBeau was of the opinion it was unlikely that under the circumstances anyone would mistake this sign for a traffic control device. That point is pertinent only to the issue of whether the sign presents a safety hazard. In support of his position that it does not and is, therefore, an

unreasonable denial of his property rights, Respondent cites Getzen v. Sumter County, 87 Fla. 45, 103 So. 104 (1925). Nonetheless it is not unreasonable to conclude this sign does constitute a potential traffic hazard as it is located.

The statute in question here has been held to be constitutional. The copy or imitation of an off icial sign, "which is adjacent to the right-of-way" is prohibited. Here, the sign in question, even though larger and placed higher than an official stop sign, and located away from an intersection, contains one of the flag words and is adjacent to the right-of- way of U.S.41 and is, therefore, prohibited.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered in this case upholding the validity of the Violation Notice in issue here, and requiring the Respondent, Carpet Stop, Inc., to remove the offending portion of the sign from its current location.

RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

H. Vernon Davids, Esquire

165 West Green STreet Englewood, Florida 34223

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 90-002318

Orders for Case No: 90-002318