B. DAVIS, INC., )
vs. ) CASE NO. 77-1675T
Respondent. )
Pursuant to notice an administrative hearing was held in the Department of Transportation District Office Conference Room, South Marion Street, Lake City, Florida, on March 29, 1978, beginning at 12:05 p.m., before Delphene C. Strickland, State Hearing Officer, Division of Administrative Hearings.
For Petitioner: Edwin B. Browning, Jr., Esquire
For Respondent: Philip S. Bennett, Esquire
Department of Transportation The Haydon Burns Building Tallahassee, Florida 32304
Whether the sign of Petitioner is in violation of Chapter 479, Florida Statutes, and the outdoor advertising rules promulgated thereunder for having no permit from the Respondent and for being erected in a nonconforming area.
Sometime prior to September 6, 1977, in the year 1977, Petitioner erected three outdoor advertising signs less than 30 feet from the nearest edge of the right-of-way of Interstate-10 in rural areas advertising pecans at a Shell station or restaurant at the next exit. One sign was located 03.53 miles East of State Road 53. One was erected 09.98 miles West of State Road 14 and one was located 05.17 miles West of State Road 14.
The Respondent, Department of Transportation, served a violation notice on Petitioner dated September 6, 1977, alleging that Petitioner's signs were in violation of Section 479.07(1) and Rule 14-10.04(1), inasmuch as no application had been made or permit granted for the erection of the signs. The violation notice also alleged that the Petitioner was in violation of Section 479.11(1)
and (2), Florida Statutes, and Rule 14-10.05(1)(a) and (b), as being in a nonconforming area.
Petitioner requested an administrative hearing stipulating as to the location of the signs in the rural areas along Interstate Highway 10.
Petitioner contends: that the subject signs are within the exception of Section 479.16(2) and are excepted from all of the provisions of Chapter 479, Florida Statutes.
Respondent contends: that the Petitioner is in fact an outdoor advertiser and does not own or lease the farms themselves and therefore does not come within the exception provided for farmers to market the produce of their farms.
Mr. J. B. Davis, the President of J. B. Davis, Inc., operates travel shops and is a Shell Oil Jobber. He operates travel shops on Interstate-75 and Interstate-10 and sells various produce at these shops including pecans and other products at the Shell station.
He has an agreement with three property owners along Interstate-10 to buy their pecans. The agreements extend to allowing the Petitioner to buy the pecans at the prevailing market price in Madison, Florida; the right to cultivate the trees themselves and right of access over the owner's property.
Two of the agreements have been reduced to writing and were introduced into evidence.
The sign erected by the Petitioner along Interstate-10 approximately 4 miles from State Road 53 was fallen down in disrepair at the date of the hearing. The sign advertised "This Exit Pecans Shell Station". It was erected on property owned by Mr. Jerry Wood and is in an open field Petitioner buys pecans from Mr. Wood. The sign located approximately 10 miles from State Road
14 is on property located by Mrs. Mattie Cruce. The sign advertises "This Exit Pecans at Shell Restaurant". It is erected in a field with scrub trees growing toward the back. Petitioner buys pecans from Mrs. Cruce to sell at the Shell station. The third sign erected by Petitioner is on property owned by Mr. John Cone. The sign is approximately 5 miles from State Road 14 along Interstate-10. It advertises "Pecans, 5 Miles at Shell Restaurant". Petitioner buys pecans from Mr. Cone.
The two lease agreements with the owners of the property on two of the signs was drawn up in the week immediately prior to the date of this hearing on the violation notices. Previously there was an oral agreement with all three owners of the property that the Petitioner would buy the pecans from the owners to sell at the Shell station operated by the Petitioner.
CONCLUSIONS OF LAW
Section 479.07(1), Florida Statutes, provides in part:
Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising struc- ture, outdoor advertising sign or outdoor
advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided. Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, oper-
ated, used or maintained, any outdoor adver- tising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by
the department. A permanent permit tag of the kind hereinafter provided shall be issued by the Department without charge and shall be affixed to the sign in the manner provided in subsection (4) . . . .
Section 470.11(1) and (2), Florida Statutes, provides in part:
Certain outdoor advertising prohibited.- No advertisement, advertising sign or advertising structure shall be constructed erected, used, operated or maintained:
Within 660 feet of the nearest edge of the right-of-way of all portions of the
interestate system or the federal-aid primary system except as provided in s. 479.111, or within 15 feet of the outside boundary of
any other federal or state highway or within
100 feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, or railroad Intersection outside the limits of any incorporated city or town.
Beyond 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or federal-aid primary system outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system, unless it is of a class or type permitted in subsection 479.111(1)
or subsections 479.16(1) or (3).
Petitioner did not apply for nor was granted a permit for signs it erected along the right-of-way of Interstate-10. These signs were erected less than 30 feet from the right-of-way and within 660 feet of the nearest edge of the right-of-way for the purpose of the message being read from the main traveled way of the Interstate Highway.
Section 479.16, Florida Statutes, provides in part:
479.16 Certain advertisements excepted.- The following advertisements, advertising signs and the advertising structures, or
parts thereof, upon which they are posted or displayed, are excepted from all provi- sions of this chapter except those con- tained in s. 479.11(3)-(5).
* * *
(2) Those constructed, erected, operated, used or maintained on any farm by the owner or lessee of such farm and relating solely to farm produce, merchandise, service or entertainment sold, produced, manufactured or furnished on such farm; (emphasis supplied)
Petitioner does not come within the exception of the foregoing statute. Petitioner's business is to sell products, including pecans, at his travel shops. Petitioner is not in the farming business and merely buys the pecans from the three owners of the lands on which he has erected outdoor advertising signs. The signs advertise not only pecans but a restaurant and a Shell service station. The lease agreements on two of the signs, written subsequent to the violation notice citing Petitioner's billboards and prior to the hearing, appear to be an attempt to show that the Petitioner is a lessee of the two subject farms. His testimony that he has had verbal agreements to buy the pecans from the property owners show that the interest of the Petitioner is in fact selling pecans produced by the owners of the farm and that the billboards were erected for the purpose of directing the travelers on Interstate-10 to his travel shop and the Shell service station don the road. The agreements allow Petitioner to fertilize and maintain the pecan trees and allow a right-of-way across the land of the owners, but such permitted duties appear to be a subterfuge.
