STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMIE'S FIRESTONE SERVICE )

CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7547

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing in this case was held pursuant to notice on April 8, 1991, in Tallahassee, Florida, by Stephen F Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Mr. Jimmie Ragans, pro se

Route 1, Box 3330

Madison, Florida 32340

FOR RESPONDENT: Charles Gardner, Esquire

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

Tallahassee, Florida 32399-0458 ISSUES

Whether the Department of Transportation (DOT) properly denied Petitioner continued participation in the Logo Sign Program.

PRELIMINARY STATEMENT

The DOT was advised in writing by Jimmie's Firestone that their posted hours of operation had been shortened to less than 16 hours per day, seven days per week. By letter dated October 31, 1990, the DOT advised Jimmie's Firestone that to be eligible for the Logo Sign Program, a business had to remain open no less than 16 hours per day, seven days per week, and that they would be dropped as participants in the program. The Department's letter also advised Jimmie's Firestone of the right to a formal administrative hearing, which was requested. DOT forwarded the case to the Division of Administrative Hearing by letter dated November 27, 1990. Notice of the formal hearing was provided on December 12, 1990 for January 28, 1991; however, Jimmie's requested a continuance until April 8, 1991 which was granted. The hearing was held on April 8, 1991, pursuant to amended notice.

Although denominated the Petitioner, Jimmie's Firestone already participates in the Logo Sign Program, and this hearing is to determine if the Department is properly seeking to revoke that privilege. Therefore, the burden of proof and persuasion are upon the DOT. The style has not been changed because neither party raised the matter before hearing, and it would be potentially confusing to alter the style at this point in the proceedings.

The DOT requested and received an extension of the time to file its proposed findings from April 18 until April 30, 1991. The Department timely filed its proposed findings which were read and considered. The Appendix attached hereto and by reference incorporated herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Logo Sign Program is a privilege granted to vendors of lodging, food, and gasoline in rural areas to advertise on DOT constructed road side panels their services on interstate highways. The DOT has established rules in accordance with federal guidelines for permitting businesses to advertise their services by placing a sign of regulated and uniform size (a logo) on the Department's roadside panel (mother board).

   
   

2. Jimmie's Firestone is located in 1the vicinity of the interchange of 1-

   10 and State Road 53, where its logo sign, a red and white Firestone Tire sign, is attached to the DOT's gasoline mother board. See Jimmie's Late Filed Exhibit, Aerial Photograph of Interchange of 1-10 and SR 53.

   
   

3. Prior to August 20, 1990, Jimmie's Firestone was open not less than 16 hours per day, seven days per week. Because of a downturn in the economy, Jimmie's altered its hours of operation to 8:00 A.M. to 6:00 P.M., or less than

   16 hours per day.

   
   

4. Jimmie's continues to provide "on call" road service 24 hours per day through other gasoline vendors at the intersection; one of which is owned by the Ragans. "On call" means that Jimmie's Firestone would reopen between 6:00 P.M. and 8:00 A.M. to provide tire sales and repair and to sell gasoline, if needed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this dispute; and this order is entered pursuant to Section 120.57(1), Florida Statutes. Section 14-85.008(2)(a)(2), Florida Administrative Code, provides in pertinent part as follows:

   
   

6. "To be eligible to display a "Gas" logo panel, a business shall 2. Operate year-round at least 16 hours per day, seven days a week."

   
   

7. "Operate" is not defined in the rule, but should be given its commonly- accepted, everyday meaning. Webster's New World Dictionary, Second College Edition, defines "operate" as, "to conduct the affairs of a business" or "to be in action so as to produce an effect." The rules provide that a participant in the gasoline logo program must provide unleaded gasoline, one or more modern restrooms, drinkable water, a public telephone, and an on-premise attendant.

   
   

8. "Operate" in the context of the rule would mandate the availability of these services and facilities 16 hours per day, seven days per week. None of the aforementioned services or facilities are immediately available as required

   by the rule when the business is "on call." The rule's intent is stymied when services and facilities are not immediately available.

   
   

9. Jimmie's Firestone does not meet the minimum requirement to participate in the Department's Logo Sign Program.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the permit to participate in the gasoline logo sign program issued to Jimmie's Firestone be revoked and its logo removed from the Department's roadside panel.

DONE AND ORDERED this 15th day of May, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 15th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE No. 90-7547

The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact 1-5. Adopted.

COPIES FURNISHED:

Mr. Jimmie Ragans Route 1, Box 3330

Madison, FL 32340

Charles Gardner, Esg. Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, Esq. General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007547

Orders for Case No: 90-007547