STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREWINGTON SONS & DAUGHTERS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1763T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, Richard Hixson, held a formal hearing in this case on September 26, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Floyd B. Brewington, Sr.

Brewington Sons & Daughters 8007 U.S. Highway 301 North

Tampa, Florida 33637

For Respondent: Mary J. Dorman, Esquire

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue for determination in this case is whether Respondent, DEPARTMENT OF TRANSPORTATION, properly issued a notice of violation to Petitioner, BREWINGTON SONS & DAUGHTERS, for Petitioner's failure to obtain a permit for an outdoor advertising sign.

PRELIMINARY STATEMENT

On January 18, 1995, Respondent, pursuant to Section 479.07, Florida Statutes, posted a notice of violation on an outdoor advertising sign located on the property of Petitioner. On January 19, 1995, Respondent mailed to Petitioner a notice of violation advising Petitioner of the right for hearing in accordance with Chapter 120, Florida Statutes. Petitioner filed a timely request for formal hearing.

At hearing, Petitioner presented the testimony of Floyd B. Brewington, Sr. Petitioner offered no exhibits. Respondent presented the testimony of Mona Hart and Susan Rosetti, and seven exhibits which were admitted into evidence.

A transcript of the proceedings was filed on October 10, 1995. On October 25, 1995, Respondent filed a Proposed Recommended Order. Petitioner did not file a Proposed Recommended Order. Separate rulings on Respondent's proposed findings are set forth in the Appendix attached hereto.

FINDINGS OF FACT

1. Beginning in 1966, Petitioner, BREWINGTON SONS & DAUGHTERS, was engaged in a used-car business located at 8007, U.S. Highway North, in Hillsborough County, Florida.

   
   

2. For reasons unrelated to this case, on December 19, 1994, the Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, suspended Petitioner's license as an independent motor vehicle dealer in Florida.

   
   

3. As a result of this licensure suspension, Petitioner ceased operation of a used-car business after December 19, 1994.

   
   

4. At some time prior to January 18, 1995, Petitioner had erected a sign which read, in pertinent part, "Brewington Sons & Daughters Used Cars, Sales and Service," which sign was located at Petitioner's property on U.S. Highway 301 North, in Hillsborough County, Florida.

   
   

5. The subject sign was visible from the main-traveled way of U.S. Highway

   301 North.

   
   

6. U.S. Highway 301 is a federal-aid primary highway.

   
   

7. In January of 1995, prior to the issuance of a notice of violation to Petitioner, Mona Hart, a property and outdoor advertising inspector of Respondent, inspected Petitioner's property from U.S. Highway 301 and observed the subject sign. At the time of this inspection, there was no indication of a used-car business in operation at the site.

   
   

8. In January of 1995, prior to the issuance of a notice of violation to Petitioner, Susan Rosetti, the district right-of-way administrator of property management and outdoor advertising with Respondent, contacted the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, regarding the status of Petitioner's license and was informed that Petitioner's license to operate a used-car business had been suspended on December 19, 1994.

   
   

9. On January 18, 1995, Respondent issued a notice of violation to Petitioner under Section 479.07, Florida Statutes, and posted a violation sticker on the subject sign for failure to have a permit.

   
   

10. On January 19, 1995, Respondent mailed a notice of violation to Petitioner.

    
    

11. On January 18, 1995, Petitioner was not operating a used-car business on the premises where the subject sign was located.

    
    

12. On or before February 10, 1995, Petitioner removed the subject sign from its location on U.S. Highway North in Hillsborough County, Florida.

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 479.02, Florida Statutes, authorizes Respondent to administer and enforce the provisions of Chapter 479, Florida Statutes. Section 479.07(1), Florida Statutes, provides, in pertinent part:

    
    

    Except as provided in s. 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used or maintained, any sign . . . on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. For purposes of this section, 'On any portion of the . . . interstate or federal-aid primary system' shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

    
    

15. The term "sign" is defined in Section 479.01(17), Florida Statutes,

    as:

    
    

    . . . 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, whether placed individually or on a V-type, back-to-back, side-to-side, stacked or double- faced display or automatic changeable facing, 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. The term does not include an official traffic control sign, official marker, or specific

    information panel erected, caused to be erected, or approved by the department.

    
    

16. The phrase "main-traveled way" is defined in Section 479.01(10),

    Florida Statutes, as:

    
    

    . . . the traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separate roadways for traffic in opposite directions is a main-traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas.

17. The subject sign meets the statutory definition of a "sign", as it had an advertising message visible from the main-traveled way, which was observed by the Respondent's inspector while traveling on the main-traveled way of U.S. Highway 301, a federal-aid primary highway.

    
    

18. As such, the subject sign required a permit unless otherwise exempted by Section 479.16, Florida Statutes.

    
    

19. Respondent must prove by a preponderance of the evidence that the subject sign did not have a permit, as required by Chapter 479, Florida Statutes. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979), cert. denied, 376 So.2d 74. Petitioner testified at the hearing that he did not have a permit nor did he ever apply for one. Petitioner admits that he never applied for a permit, and as the evidence demonstrates, that the subject sign was required to have a permit, pursuant to Section 479.07, Florida Statutes. Accordingly, Respondent met its burden.

    
    

20. If Petitioner were operating a used-car business on the premises, Petitioner could then apply for an exception from the permitting requirement. See, Dept. of Corrections v. Dixon, 436 So.2d 320 (Fla. 1st DCA 1983); Florida Dept. of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). Section 479.16, Florida Statutes, states, in pertinent part:

    
    

    The following signs are exempt from the require- ment that a permit for a sign be obtained under the provisions of this chapter . . . (1) Signs erected on the premises of an establishment, which signs consist primarily of the name of

    the establishment or which identify the principal or accessory merchandise, services, activities

    or entertainment sold, produced, manufactured, or furnished on the premises of the establish- ment . . .

    
    

21. The record establishes that on the day that the notice of violation was issued by the Department, there was no used-car business on the premises upon which the subject sign was located. The Division of Motor Vehicles had suspended the Petitioner's license on December 19, 1995, and as a result, the Petitioner was not legally entitled to be in the used-car sales business. Additionally, there was no evidence of a used-car business in operation at the premises. For these reasons, the subject sign does not fall into the category of "premises signs", identified in Section 479.16(1), Florida Statutes, and required a permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order

confirming the issuance of a notice of sign violation to Petitioner.

DONE AND ENTERED this 7th day of November, 1995, in Tallahassee, Leon County, Florida.

RICHARD HIXSON

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 7th day of November, 1995.

APPENDIX

As to Respondent's Proposed Findings

1 - 11. Accepted and incorporated.

COPIES FURNISHED:

Floyd B. Brewington, Sr. Brewington Sons & Daughters 8007 U.S. Highway 301 North

Tampa, FL 33637

Mary J. Dorman, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, FL 32399-0458

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

605 Suwannee Street

Tallahassee, FL 32399-0450 Attn: Diedre Grubbs, M.S. 58

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450

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.

Docket for Case No: 95-001763

Orders for Case No: 95-001763