STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 98-2680T

) DERON'S CUSTOM SCREEN PRINTING, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on November 16, 1998, in Lakeland, Florida.

APPEARANCES

For Petitioner: Andrea V. Nelson, Esquire

Department of Transportation

Haydon Burns Building, Main Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: John G. Wood, Jr., Esquire

3601 Cypress Gardens Road Suite A

Winter Haven, Florida 33884 STATEMENT OF THE ISSUE

Did the Department of Transportation properly issue Notice of Violation No. 10B LJM 1997 197 to Respondent pursuant to Chapter 479, Florida Statutes?

PRELIMINARY STATEMENT

By a Notice of Violation - Illegally Erected Sign the Department of Transportation (Department) notified Respondent Deron's Custom Screen Printing (Deron's) that its outdoor advertising sign located 50 feet west of Hammond Drive was being maintained without a permit in violation of Section 479.07(1), Florida Statutes, and that the sign was not exempted under Section 479.16, Florida Statutes. The Department further advised Deron's that in accordance with Section 479.105, Florida Statutes, the sign must be removed within 30 days or the Department would remove and dispose of the sign unless a timely request for a hearing under Chapter 120, Florida Statutes, was received from Deron's. On December 18, 1997, Deron's filed a Petition for Initiation of Formal Proceedings with the Department. By letter dated June 10, 1998, the Department referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Department presented the testimony of Brenda Hall and Jack Lowery. The Department's Exhibits Nos. 1 through 3 were received as evidence. Deron's presented the testimony of Deron Stults. Deron's offered no documentary evidence.

A transcript of this proceeding was filed with the Division on November 30, 1998. The parties timely filed their Proposed Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Deron's owns the property located at 4212 Hammond Drive (State Road 542) which is on the east side of Hammond Drive. Deron's business establishment is located at 4212 Hammond Drive. Deron's primary business activities such as screen printing, embroidery, and sales are conducted at 4212 Hammond Drive.

2. Eastwood Self-Storage (Eastwood) is located at 4207 Hammond Drive, which is on the west side of Hammond Drive. Eastwood is in the business of leasing storage spaces to the public for self-storage.

3. Deron's currently leases three self-storage spaces from Eastwood where Deron's primarily stores its excess inventory and supplies. Deron's does not have a business office located at 4207 Hammond Drive and does not conduct any of its business activities such as screen printing, embroidery, and sales at the self-storage units located at 4207 Hammond Drive.

4. The sign subject to this proceeding (sign) is located at 4207 Hammond Drive on property owned by Eastwood.

5. Deron's paid Eastwood to erect the subject sign which sits on top of an on-premise sign owned by Eastwood.

6. Deron's does not pay any rent for the use of the sign to Eastwood or anyone else.

7. The sign advertises Deron's business and the business activities performed by Deron's at its establishment located at 4212 Hammond Drive.

8. Hammond Drive separates the property owned by Eastwood where the sign is located (4207 Hammond Drive) from the property owned by Deron's at 4212 Hammond Drive upon which Deron's business establishment is located.

9. The sign is located within 660 feet of, and is visible to, State Road 542, a jurisdictional highway for purposes of enforcing outdoor advertising.

10. Because of the location of the subject sign (within a 1000 feet of another permitted sign on the same side of Hammond Drive), it does not meet the permitting requirements of

    Chapter 479, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

12. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the Department must establish facts upon which its allegations are based by a preponderance of the evidence. Section 120.57(1)(h), Florida Statutes.

13. Section 479.07(1), Florida Statutes, provides as follows:

    1. Except as provided in ss. 479.105(1)(e) and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or 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 State Highway System, 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.

14. Pertinent to this proceeding, Section 479.16(1), Florida Statutes, provides as follows:

    The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter but are required to comply with the provisions of s. 479.11(4)-(8):

    1. Signs erected on premises of an establishment, which consists 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 establishment and which comply with the lighting restrictions under department rule adopted pursuant to s. 479.11(5). If a sign located on the premises of an establishment consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection. (Emphasis furnished.)

15. Section 479.01(15), Florida Statutes, provides as

    follows:

    
    

    (15) "Premises" means all the land areas under ownership or lease arrangement to the sign owner which are contiguous to the business conducted on the land except for instances where such land is narrow trip, the only visible use of such land is to erect or maintain an advertising sign.

    (Emphasis furnished.)

    
    

16. The Department takes the position that since the property upon which Deron's establishment is located and the property upon which the sign is erected are separated by Hammond Drive the properties are not contiguous; and therefore, the sign does not meet the requirement for exemption set out in Section 479.16(1), Florida Statutes, in that the sign must be erected on the premises of the establishment as defined by Section 479.01(15), Florida Statutes. Further, the Department takes the position that since none of Deron's business activities that are advertised by the sign are being conducted by Deron's at the location of Deron's leased self-storage facilities, then the sign does not meet the requirements for exemption set out in

    Section 479.016(1), Florida Statute, in that regard.

    
    

17. Although Sections 479.01(15) and 479.16(1), Florida Statutes, may be subject to other reasonable interpretations different from the Department's interpretation, the Department's interpretation is a reasonable interpretation and must be upheld despite the existence of other reasonable interpretations. Department of Professional Regulation v. Durrani, 455 So. 2d 515,

517 (Fla. 1st DCA 1984), Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 238, 242 (Fla. 1st DCA 1981). Therefore, the Department has met its burden to show that the subject sign is not exempted from the requirement of being permitted; and further, that the sign cannot be permitted due to its location and the Department's spacing requirement for permitted signs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the subject sign to be in violation of Chapter 479, Florida Statutes; and it is further recommended that Deron's be required to remove the sign from its location.

DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st of December, 1998.

COPIES FURNISHED:

Thomas F. Barry, Secretary ATTN: James C. Myers,

Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Andrea V. Nelson, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

John G. Wood, Jr., Esquire 3601 Cypress Gardens Road Suite A

Winter Haven, Florida 33884

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-002680

Orders for Case No: 98-002680