STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2427T

)

CONTRACTOR'S EXAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal administrative hearing in the above-styled case on July 18, 1990, in Tampa, Florida.

APPEARANCES

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

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Joseph R. Fritz, Esquire

4204 North Nebraska Avenue Tampa, Florida 33603

STATEMENT OF THE ISSUES

Whether the sign on the side of the Respondent's trailer, which has been placed on the east side of I-4, .01 mile south of Buffalo Avenue in Hillsborough County, is a nuisance which should be removed, pursuant to Chapter 479, Florida Statutes.

PRELIMINARY STATEMENT

On April 2, 1990, the Department of Transportation (the Department) issued a Notice of Violation to the Respondent, Contractor's Exam (Contractor), based upon the determination that the metal trailer located on the east side of I-4,

1. mile south of Buffalo Avenue in Hillsborough County, was a sign that was not properly permitted. Contractor was advised that it had thirty days from the date of the notice to remove the sign or it would be removed by the Department.

   
   

   Contractor contests the Department's finding that the trailer is a sign as defined by Chapter 479, Florida Statutes. A formal administrative hearing was requested to resolve the factual dispute.

   During the hearing, the Department called two witnesses and filed three exhibits. Contractor presented one witness and filed fifty-two exhibits. All of the Department's exhibits were admitted into evidence. Contractor's exhibits numbered 1-16, 19-22, 27-38, 41-42, 45-48 and 51 were admitted. At the close of the proceedings, the parties waived the thirty-day requirement for the filing of the Recommended Order and requested twenty-one days beyond the filing of the transcript in which to file proposed recommended orders. Both recommended orders were ultimately received by the Division of Administrative Hearings on August 15, 1990 and August 27, 1990.

   
   

   Rulings on proposed findings of fact are in the Appendix of the Recommended Order. Due to the style in which Contractor's proposed recommended order was written, the Hearing Officer will rule on each paragraph in succession, as if it had been numbered by Contractor.

   
   

   FINDINGS OF FACT

   
   

   1. In early February 1990, the Department's Outdoor Advertising Administrator with District 7 observed the following: a 13' x 40' metal trailer with a large advertisement for Contractor's Exams on its side in a stationary location. The trailer was approximately twenty feet from the I-4 right-of-way fence, on the east side of the highway, one-tenth of a mile south of Buffalo Avenue in an unincorporated area of Hillsborough County. The advertising message was clearly visible from the main travel way of the interstate highway.

      
      

   2. During a sixty-day period, the administrator regularly observed this trailer to see if it had been relocated in anyway. When he determined from the observations that the trailer had not been moved, he visited the property where the trailer was located on April 2, 1990.

      
      

   3. The business enterprise at this location is South Florida Engineering Company. As part of its business, this company has trailers, tractors and other equipment parked on site.

      
      

   4. When the administrator and an outdoor advertising inspector entered the property, they went to the office and inquired about the one trailer. The administrator was directed to another manager who has his office in the dock area. No one met with him at this location, and he was unable to get any more assistance from the man with whom he had spoken earlier.

      
      

   5. Having observed the trailer on the premises, and having observed its distance away from other equipment, along with its position in relation to the highway and the type of message printed on its side, the administrator issued a Notice of Violation. The administrator determined that the printed message on the trailer's side advertising Contractor's Exams was a unpermitted sign, in violation of Section 479.07(1) Florida Statutes.

      
      

   6. Another copy of the notice was mailed to Carl Mathews Construction School. The reason the notice was mailed to this enterprise was because the school's services were being advertised by the sign. The mailing address was ascertained by calling the phone number on the advertisement and requesting the address.

      
      

   7. The inspector accompanying the administrator physically attached the Notice of Violation on the trailer and took a picture of it on this same date.

   8. Subsequent to April 2, 1990, the inspector took pictures of a different trailer on the same site with the same advertising message. In these later pictures, the trailer was farther away from the right-of-way fence, but the message could still be seen from the interstate highway. The trailer remained isolated from other trailers on site. These additional pictures were taken on June 15 and 26, and July 18, 1990.

      
      

   9. In addition to the trailer in I-4 and Buffalo Avenue, the inspector became aware of another trailer with the same message at State Road 60 and Adamo Drive. This trailer's message could also be seen from the road. It remained at this location in the same stationary position from the middle of June through mid July. This trailer was parked in a trailer yard.

      
      

   10. Mr. Carl Mathews is the owner of Carl Mathews Construction School, the business advertised on the side of these two trailers. In addition to this enterprise, Mr. Mathews is actively involved in the business of leasing trailers, like the two previously mentioned. Ordinarily, these are leased to Contractors for the storage of on-site supplies or to truckers for over the road hauling. Through his various interests in a number of corporations, Mr. Mathews has an interest in one hundred and thirty trailers as well as the trailer yard at State Road 60 and Adamo Drive.

       
       

   11. Only two of these trailers display an advertisement for Carl Mathews Construction School.

       
       

   12. The trailer originally at the I-4 and Buffalo Avenue site from February through April 2, 1990, was there for two reasons.

       
       

   13. First of all, the strip of property where both trailers were ultimately located had been leased by one of the corporations in which Mr. Mathews is a principle. The purpose of the lease was to store empty trailers during the time periods they were not being leased. Storage of this type of trailer is difficult in Hillsborough County because ordinances only allow them on property zoned for industrial use.

       
       

   14. Secondly, the trailer in question needed its brakes redone. During this time period, this repair was going to be performed by South Eastern Mechanical, who runs a repair business at this site. Later, this trailer was moved to the State Road 60 - Adamo Drive storage yard in which Mr. Mathews has an ownership interest. This yard had recently acquired its own mechanic who will repair the brakes.

       
       

   15. The second trailer was also placed at the I-4 - Buffalo Avenue location for storage purposes.

       
       

   16. The Carl Mathews Construction School is located at 7207 North Nebraska Avenue in Tampa. There are no school functions at the I-4 - Buffalo Avenue location.

       
       

   17. The purpose of the written message on each trailer was to inform members of the public interested in Contractor's Exams that Carl Mathews Construction School was offering new courses.

       
       

   18. A sign permit has not been issued by the Department for either trailer during their stays at the I-4 - Buffalo Avenue location.

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

       
       

   20. Chapter 479, Florida Statutes, regulates signs in areas adjacent to the highways of this state. Section 479.01(14), Florida Statutes, defines "sign", as used in this chapter, as follows:

       
       

       "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 . . . 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 . . .

       
       

   21. In this case, the corporate entities who owned these two trailers with advertisements for Carl Mathews Construction School, did not specifically intend to advertise the school's services when the trailers were placed at the I-4 - Buffalo Avenue location. However, the trailers were painted with the advertisement for the express purpose of informing others that the school was offering new courses. When the trailers were placed at the I-4 - Buffalo Avenue location during different time periods, they continued to serve this advertising function.

       
       

   22. The issue is not what was intended by the owners of the trailers. It is whether unpermitted signs, as defined in this chapter, can remain in a location adjacent to the right-of-way of any portion of the interstate highway system in an unincorporated area. By statute, such signs are not allowed to remain at such locations. Section 479.105(1), Florida Statutes, provides as follows, in pertinent part:

       
       

       Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area

       or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated or maintained without the permit required by s. 479.07(1) having been issued

       by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

       
       

   23. Section 479.01(9), Florida Statutes, defines the word "maintain" as "to allow to exist." Therefore, based upon the applicable law, the trailers are signs which must be permitted or removed from the I-4 - Buffalo Avenue location. While either sign remains at this location, it is a public nuisance and a private nuisance.

       
       

   24. The Notice of Violation was properly issued by the Department on the first trailer, as provided by Section 479.105, Florida Statutes. Such a notice has not been issued on the second trailer at the I-4 - Buffalo Avenue location.

RECOMMENDATION

Based on the foregoing, it is recommended:

1. That the Notice of Violation issued against the first trailer at the I-

   4 - Buffalo Avenue location be found be have been properly issued by the Department.

   
   

2. That Contractor be found to have fully complied with the Notice of Violation issued April 2, 1990.

RECOMMENDED this 25th day of September, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 25th day of September, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2427T

The Department's proposed findings of fact are addressed as follows:

1. Accepted. See HO number 1, number 2 and number 5.

2. Accepted. See HO number 10, number 11, number 14 and number 16.

3. Accept first sentence. See HO number 10. The rest is rejected as irrelevant to the dispute of material fact.

Contractor's proposed findings of fact are addressed as follows:

1. Accepted. Although the Department did comply with all necessary legal requirements when the violation was posted on the first trailer.

2. Accept all but last two sentences. See HO number 8. The last two sentences are contrary to fact. See HO number 15. There was no showing that the second trailer had been moved from the I-4 - Buffalo Avenue location. There was insufficient reliable evidence presented at hearing for the Hearing Officer to accept this presumption. More reasonable, contrary evidence was accepted by the Hearing Officer which revealed that the second trailer remained at this location. See HO number 9.

3. Rejected. Contrary to fact that the first trailer was able to operate on the road. See HO number 14. Otherwise, accept that trailers were the type of trailers pulled by truck tractors.

4. Accepted. But factual dispute was reconciled. See HO number 1 and number 8.

5. Rejected. Contrary to fact. See HO number 18.

6. Accept all except last sentence. See HO number 10, number 12, number 13, number 14 and number 15. Last sentence is improper conclusion and contrary to reasonable inference. See HO number 9.

7. Rejected. Improper comparison without proper foundation.

8. Rejected. Improper legal argument.

9. Accept the first sentence. See HO number 10. Reject the last sentence as self serving.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603

Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Docket for Case No: 90-002427

Orders for Case No: 90-002427