STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELL OIL CORP. d/b/a ) NEBRASKA AUTO SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3498T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 10, 1996, a formal administrative hearing in this case was held in Tampa, Florida, before William. F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. The Hearing Officer conducted the proceeding by videoconference.

APPEARANCES

For Petitioner: M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

For Respondent: Thomas M. Duffy, Esquire

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's sign should be permitted by the Respondent.

PRELIMINARY STATEMENT

In March 1994, the Respondent (Department) issued to the Petitioner (Shell) a Notice of Violation concerning a sign built and maintained by Shell. Shell requested a formal hearing. The Department forwarded the request to the Division of Administrative Hearings which scheduled the proceeding.

At the hearing, Shell presented the testimony of two witnesses and offered seven exhibits into evidence. The Department presented the testimony of two witnesses and offered one exhibit into evidence. Without objection, Shell also submitted the deposition testimony of an additional witness and two additional exhibits after the close of the hearing. All exhibits were admitted into evidence. The parties also filed a prehearing statement which was admitted as a Hearing Officer's exhibit.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. In 1969, Shell erected a sign consisting of the familiar Shell Oil Company "scallop shell" emblem.

   
   

2. At some time after the initial erection of the sign, an arrow pointing east and reading "one block" was added to the sign pole. Based on the evidence, it appears the arrow was added to the sign sometime in 1970.

   
   

3. The sign is located north of Fowler Avenue and east of Interstate 275 in an unincorporated urban area of Hillsborough County, Florida.

   
   

4. At the time the sign was erected, the Department did not regulate signs within incorporated cities or towns.

   
   

5. The Shell sign is located immediately outside the municipal limits of the City of Tampa and, based on agreements between the federal and state governments, is within the Department's permitting jurisdiction.

   
   

6. Shell obtained appropriate building permits from Hillsborough County prior to construction and erection of the sign and arrow. The sign appears to meet appropriate local government zoning classifications.

   
   

7. The sign is two-sided, facing north and south. Each side measures approximately twelve feet by twelve feet. The dimensions of the sign are within the requirements set forth by regulations established pursuant to agreement between the state and federal governments.

   
   

8. The sign directs motorists to a Shell Oil station located at the intersection of Fowler and Nebraska Avenues.

   
   

9. The sign is less than 1,000 feet from the Shell Oil station at the intersection of Fowler Avenue and Nebraska Avenue. The sign is at least fifteen feet outside of the interstate right-of-way.

   
   

10. The sign is clearly visible from Interstate 275. The station's on- site signage is not visible from the interstate.

    
    

11. The sign is located on land leased by Shell from owners. The lease was entered in 1969 and has since been renewed.

    
    

12. Shell has never applied for or obtained a permit from the Department. Prior to the Notice of Violation, Shell was apparently unaware that the sign required permitting by the Department.

    
    

13. Having driven in the area, Gene Hendry, a former outdoor advertising inspector for the Department, was aware of the sign but made no attempt to determine whether the sign required permitting.

14. Mr. Hendry apparently assumed that the sign was inside the city limits and did not need a DOT permit. He did not communicate with the Department or with Shell about the sign.

    
    

15. On March 17, 1994, Mona Hart, a property and outdoor advertising inspector for the Department, noticed the sign. Ms. Hart had been employed by the Department for approximately nine months, and had recently been assigned to the area of the sign. Ms. Hart's duties include monitoring and regulation of signs under the Department's jurisdiction.

    
    

16. Ms. Hart inspected the sign and found that it did not display a permit.

    
    

17. After determining that the sign was within the Department's controlled area, Ms. Hart consulted the Department's records and determined that the sign had not been permitted.

    
    

18. Ms. Hart issued a Notice of Violation informing Shell that the sign needed to be removed within thirty days or the Department would remove the sign at Shell's expense.

    
    

19. There is no evidence that the Department inspected the sign prior to Ms. Hart's action in March 1994.

    
    

20. There is no evidence that, prior to Ms. Hart's inspection, any Department representative indicated to Shell that the sign did not require permitting.

    
    

21. There is no evidence that there has been any communication between the parties prior to the issuance of the 1994 Notice of Violation.

    
    

22. There are two DOT-permitted billboards approximately 600 feet south of the Shell sign and east of the interstate. The signs were permitted in 1981.

    
    

23. The spacing between these signs and the Shell sign are not in compliance with regulations related to sign spacing and render the Shell sign unpermittable under existing rules.

    
    

24. The next closest DOT-permitted billboard is located about 1,300 feet south of the south edge of the main traveled way of Fowler Avenue and more than 1,500 feet from the Shell sign. The sign was apparently permitted in 1984.

    
    

25. There is another DOT-permitted billboard more than 1,500 feet north of the Shell sign. The evidence does not establish the date of permitting for this sign.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. The Department of Transportation is responsible for regulation of specified outdoor advertising on Florida highways. Chapter 479, Florida Statutes. The burden is on the Department to establish that the sign is in violation of permitting requirements. In this case, the burden has been met.

28. Shell asserts that the principle of laches bars the Department's prosecution of this case. As is relevant to this case, the defense of laches requires clear evidence of the following: conduct on the part of Shell giving rise to the situation of which complaint is made; delay in asserting the Department's rights where the Department had knowledge or notice of Shell's conduct and an opportunity to bring the legal action; lack of knowledge or notice on Shell's part that the Department would assert the permitting requirement; and injury or prejudice to Shell if the Department's position is successful.

    
    

29. In this case, the evidence fails to establish that the Department had knowledge or notice of Shell's conduct and delayed in asserting the right to bring the legal action. At best, the evidence establishes only that a former Department employee saw the sign and made an erroneous assumption about the location. Mere knowledge of the existence of the sign is insufficient to establish that the agency was on notice that the sign should have been, but was not, permitted.

    
    

30. Shell also asserts that the sign may be permittable under the "nonconforming signs' provisions of Rule 14-10.007, Florida Administrative Code. Nonconforming signs are "lawfully erected" signs which for certain reasons fail to comply with applicable criteria.

    
    

31. In this case, the evidence fails to establish that the Shell sign meets the requirement of being "lawfully erected" in that the sign required, but lacked, Department permitting when it was erected in 1969.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order directing that the cited sign be removed as stated in the Notice of Violation.

DONE and ORDERED this 31st day of January, 1996, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM, 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 31st day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3498T

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

4. Rejected, unnecessary.

10-14 Rejected, subordinate.

16. Rejected, irrelevant.

Respondent's Proposed Findings of Fact.

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

COPIES FURNISHED:

Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

M. Christopher Bryant, Esquire Oertel, Hoffman,

Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

Thomas M. Duffy, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELL OIL CORP. d/b/a ) NEBRASKA AUTO SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3498T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

NOTICE OF SCRIVENERS ERROR

Page one of the Recommended Order issued in this case incorrectly identifies the date of hearing. A copy of the corrected page is attached to this notice to reflect the correct date of the formal administrative hearing as being October 10, 1995.

ISSUED this 31st day of January, 1996, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM, 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 31st day of January, 1996.

COPIES FURNISHED:

Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

M. Christopher Bryant, Esquire Oertel, Hoffman,

Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

Thomas M. Duffy, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Attachment STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELL OIL CORP. d/b/a ) NEBRASKA AUTO SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3498T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 10, 1995, a formal administrative hearing in this case was held in Tampa, Florida, before William. F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. The Hearing Officer conducted the proceeding by videoconference.

APPEARANCES

For Petitioner: M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

For Respondent: Thomas M. Duffy, Esquire

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's sign should be permitted by the Respondent.

PRELIMINARY STATEMENT

In March 1994, the Respondent (Department) issued to the Petitioner (Shell) a Notice of Violation concerning a sign built and maintained by Shell. Shell requested a formal hearing. The

Docket for Case No: 94-003498

Orders for Case No: 94-003498