STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1714T

)

FUQUA & DAVIS, INC., )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1716T

)

JIM HARKINS JR. OUTDOOR )

ADVERTISING, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1921T

)

TRI-STATE SYSTEMS, INC., )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1922T

)

TRI-STATE SYSTEMS, INC., )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1923T

)

TRI-STATE SYSTEMS, INC., )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1924T

)

TRI-STATE SYSTEMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Chipley, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on August 7, 1989. The hearing transcript reached the Division of Administrative Hearings on August 31, 1989. Petitioner filed proposed findings of fact, conclusions of law and recommendation on October 16, 1989. Respondents filed their proposed recommended order on October 23, 1989.

By requesting more than ten days following receipt of the transcript, in which to make posthearing submissions, the parties waived the time limits set out in Rule 28-5.402, Florida Administrative Code, in accordance with Rule 22I- 6.031(2), Florida Administrative Code. The attached appendix addresses numbered proposed findings of fact by number.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458

For Respondents: Gerald S. Livingston, Esquire

Post Office Box 2151 Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?

PRELIMINARY STATEMENT

By notice of alleged violation dated February 13, 1989, petitioner Department of Transportation (DOT) alleged that Jim Harkins, Jr. Outdoor Advertising (Harkins) had violated Rule 14-10.006(1)(a), Florida Administrative Code, by erecting signs (Tags Nos. AV098-35 and AV099-35) 1.7 miles east of State Road 69 on Interstate Highway 10. Harkins requested a hearing on March 15, 1989. When DOT forwarded the hearing request to the Division of Administrative Hearings, the case was docketed as No. 89-1716T.

By separate notices of alleged violation dated March 2, 1989, DOT alleged that Fuqua & Davis, Inc. had violated the same rule by erecting a sign 2.4 miles east of State Road 77 on Interstate Highway 10; and that Tri-State Systems, Inc. (Tri-State) had violated the same rule by erecting signs along Interstate

Highway 10 at four locations: 2.7 miles east of State Road 77; 1.3 miles west of State Road 77; and 1 mile east of State Road 77. DOT forwarded timely hearing requests, addressed to each notice of alleged violation, to the Division of Administrative Hearings, where they were docketed as Cases Nos. 89-1714T, 89- 1921T, 89-1922T, 89-1923T, 89-1924T.

On motion, all six cases were consolidated. At the final hearing, the parties stipulated that the signs stood where the notices of alleged violation had placed them, and agreed that pictures received as exhibits accurately depicted the signs. By agreement of the parties, depositions of Elsie Myrick, Gary Kissinger, and Milford Truette came in evidence, even though the latter two witnesses also testified at hearing.

FINDINGS OF FACT

1. Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T).

   
   

2. Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T).

   
   

3. Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles,

   1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T).

   
   

4. Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T).

   
   

5. Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road

   77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T)

   
   

6. Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a

   mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T).

   
   

7. A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected.

   
   

8. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8.

   
   

9. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15.

   
   

10. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.

    
    

    CONCLUSIONS OF LAW

    
    

11. Because DOT transmitted respondent's requests for formal hearings to the Division of Administrative Hearings, "the division has jurisdiction over the formal proceeding[s]." Section 120.57(1)(b)3., Florida Statutes (1987).

    
    

12. In each consolidated case, DOT relies on Section 479.01(16) and (17), Florida Statutes (1987) and on Rule 14-10.006(1)(a)3. and 14-10.009(2), Florida Administrative Code, as authority for its contention that the signs in question are unlawful. In keeping with an agreement between DOT and the United States Department of Transportation, one of DOT's rules provides, with respect to outdoor advertising signs, that

    
    

    there shall be no more than two faces to each facing, facing the same direction and showing at one time.

    
    

    Rule 14-10.006(1)(a)3., Florida Administrative Code. A "sign face" is defined by statute as "the part of the sign, including trim and background, which contains the message or informative contents," Section 479.01(16), Florida

    Statutes (1987), while "facing" is defined as "all sign faces displayed at the same location ... facing the same direction." Section 479.01(17), Florida Statutes (1987).

    
    

13. Beginning with the unfounded premise that a "sign face" can convey only a single message, DOT would nevertheless allow a single sign to advertise a number of businesses or products as long as there existed "a prominent common thread to tie them together." Petitioner's proposed recommended order, p. 7.

    As DOT's employees' contradictory testimony in these cases illustrated, this "prominent common thread" standard would create its own set of problems.

    
    

14. DOT's theory hinges on the fact that "message" in Section 479.01(16), Florida Statutes (1987) is singular (and ignores the plural, disjunctive "informative contents" that immediately follows.) But a fair reading of the statutes and rules discloses no substantial basis for DOT's construction. By "sign face" the statute simply means one side of a sign board, albeit complete with trim.

    
    

15. The agency lacks statutory authority to outlaw or regulate outdoor advertising signs on the basis of how many messages a billboard is thought to convey. "There must be some basis in a statute for the exercise of jurisdiction and power involved in the making of an order by an administrative agency."

    State ex rel. Greenburg v. Florida State Board of Dentistry, 397 So.2d 628, 635 (Fla. 1st DCA 1974) cert. dismissed 300 So.2d 900 (Fla. 1974).

    
    

16. When the legislature grants power to an administrative agency, "[t]he statute must so clearly define the power delegated that the administrative agency is precluded from acting through whim, showing favoritism, or exercising unbridled discretion." Lewis v. Bank of Pasco County, 346 So.2d 53, 56 (Fla. 1977). See Edgerton v. International Co., 89 So.2d 488 (Fla. 1956)("If there is a reasonable doubt as to the lawful existence of the particular power that is being exercised, the further exercise of the power should be arrested." At 490. "It has long been established law that a statutory agency possesses no inherent powers." Gardiner, Inc. v. Florida Department of Pollution Control, 300 So.2d 75, 76 (Fla. 1st DCA 1974). Respondent and all other "[administrative agencies are creatures of statute and have only such powers as statutes confer." Fiat Motors of North America, Inc., v. Calvin, 356 So.2d 908, 909, (Fla. 1st DCA 1978). The legislature has not conferred on DOT the power to remove outdoor advertising signs because agency employees find them overly informative.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That petitioner dismiss the notices to show cause issued in each of these consolidated cases.

DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 20th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924

Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street

Tallahassee, Florida 32399-0458

Gerald S. Livingston, Esquire Post Office Box 2151

Orlando, Florida 32802

Docket for Case No: 89-001714

Orders for Case No: 89-001714