STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5050T

)

JONES & SCULLY ORCHIDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on October 26, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Rivers Buford, Jr., Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Robert Scully, pro se

President

The Scully Group, Inc.

Jones & Scully Aloha Foliage Growers 18955 Southwest 168th Street

Miami, Florida 33187-1112 STATEMENT OF THE ISSUES

The issue presented is whether Respondent's sign is violative of Sections 479.07(1) and 479.11(1), Florida Statutes (1987) as alleged in the Notice to Show Cause dated September 6, 1989.

PRELIMINARY STATEMENT

This case involves an alleged violation of Section 479.07(1), Florida Statutes (1987), which prohibits the maintenance of a sign on any portion of a federal-aid primary highway without first having obtained a permit for the sign, and an alleged violation of Section 479.11(1), Florida Statutes (1987), which prohibits the maintenance of signs within a certain distance of the right-of-way of the federal-aid primary highway system. Respondent is the owner and maintains the sign at issue. Notice of the alleged violations was given on September 6, 1989, and Respondent contested the allegations by letter dated September 7, 1989. On September 14, 1989, Respondent requested that the Division of Administrative Hearings appoint a Hearing Officer to conduct a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

At the formal hearing, Petitioner presented the testimony of one witness and offered two exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits.

A transcript of the proceeding was ordered and received on November 27, 1989. By rule, proposed findings of fact and conclusions of law were due on or before December 7, 1989. The parties submitted proposed findings of fact. Both filings were untimely. However, in deference to the holiday mailing schedule, a ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Jones & Scully Aloha Foliage Growers, maintained the sign at issue.

   
   

2. On September 6, 1989, the sign was located on the southbound, west side of Krome Avenue, 56 feet south of Southwest 168th Street in unincorporated Dade County, Florida, and approximately 25 feet from the outside edge of the right- of-way of Krome Avenue.

   
   

3. The portion of Krome Avenue at which the sign was located is within the federal-aid primary highway system.

   
   

4. The sign was clearly visible from the roadway. However, the sign did not have a permit from Petitioner, Department of Transportation, to be located along Krome Avenue, and Petitioner placed a notice on the sign that it was illegal.

   
   

5. The sign was displayed on a rolling, four-wheel, flat-bed trailer, and its location was changed every twenty-four hours. The message on the sign was tastefully presented and indicated that Jones & Scully Orchids were located one mile away from the placement of the sign.

   
   

6. At the same intersection and along Krome Avenue other advertising signs appeared. Some indicated the presence of agricultural products for sale and others announced cafeteria trucks which were peddling their wares. Respondent asserted, at the hearing, that these signs may be in violation of the permitting requirement but that the signs had not been cited by the Petitioner. However, no proof was demonstrated that these signs were cited as illegal by Petitioner, or if they were in violation of existent law.

   
   

7. Respondent operates a worldwide mail order business featuring orchids. Many of its customers seek out the source of the plants. At some time in the past, Respondent had a permanent sign at the location of the business but was required to remove it due to some easement problems. As a result, Respondent suffered an adverse impact on its business, but since the sign at issue has been in operation, the frequency of visits from its customers had increased.

   
   

8. The presence of street signs at the corner of Krome Avenue and 168th Street is poor or inconsistent. Local government in Dade County has jurisdiction over the placement of street signs at the intersection. As a merchant in the area, Respondent has attempted to compensate for the lack of street signs by displaying its own directional indicator.

9. Although Respondent's business may suffer from the lack of an advertising or a directional sign, and although the intersection may be poorly indicated, Petitioner's sign is impermissible at the location cited. It rests within 660 feet of the nearest edge of the right-of-way of a federal-aid primary highway and is maintained on a federal-aid primary highway without a permit from Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57 (1), Florida Statutes.

    
    

11. Petitioner is statutorily empowered to administer and enforce the provisions of Chapter 479, Florida Statues, Section 479.02, Florida Statutes. Among these provisions are Sections 479.07(1) and 479.11(1), Florida Statutes, which Petitioner alleged Respondent violated,

    
    

12. Subsection (1) of Section 479.07, Florida Statutes, provides, in pertinent part, as follows:

    
    

    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 or the. .. 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.

    
    

    The term "sign", as used in Chapter 479, Florida Statutes, is defined in Section 479.01(14) 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, designed, intended, or used to advertise or inform, any part of the advertising message or informative content of which is visible from any place on the main- traveled road. ...

    
    

13. Here, the sign is constructed as a structure and offers a message which indicates the direction to the location of Respondent's business. Thus, Respondent's sign meets the criteria of the above definition and constitutes a "sign" for the purposes of Chapter 479

14. The sign is located on Krome Avenue which is a federal aid primary highway. As such, the sign must have a permit to remain along Krome Avenue. Section 479.07(1). Since a permit for the sign does not exist, the sign is in violation of Section 479.07(1).

    
    

15. Respondent argued that his sign did not meet the definition of a sign in Section 479.01(14). However, the plain meaning of Section 479.01(14), as applied to the facts of the case, indicates the contrary. Further, Respondent

    `contested that if its sign was a "sign" for the purposes of Chapter 479, it was not subjected to the permitting requirements of Section 479.07(1) since it was mobile and not "erected". To reach a determination of whether the sign was "erected" or not is unnecessary in this proceeding since Respondent admitted that he both used and maintained the sign at issue. Use and maintenance of the sign are equal operative verbs to the word erect in the disjunctive provision found in Section 479.01. Accordingly, Respondent's sign falls within the category of signs which must be permitted, regardless of its transient nature.

    
    

16. Petitioner also alleged that Respondent's sign was in violation of section 479.11(1) which states the following:

    
    

    479.11 Specified signs prohibited.-No sign shall be erected, used, operated, or maintained:

    (1) Within 660 feet of the nearest

    edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in ss. 479.111 and 479.16.

    
    

    Here, Petitioner's sign, on the day it was noticed, was located approximately

    25 feet from the outside edge of Krome Avenue or within the range prohibited by the above provision and is thus violative of section 479.11(1).

    
    

17. Both Sections 479.07(1) and 479.11(1) provide for exceptions to their requirements. However, Respondent did not assert that his sign fell within any of the exceptions. The burden is on the party seeking exemption from a licensing requirement to establish entitlement to such exemption. See, Harper v. England, 168 So. 403 (Fla. 1936).

    
    

18. Respondent urged that although it and some other owners of unpermitted signs have been cited for failure to obtain a permit, other sign owner whose signs allegedly violate the permitting requirement of Chapter 479 have not been prosecuted by the Department, and their signs are still standing. Even assuming that Respondent is correct regarding the legality of these other signs, Petitioner's abdication of its statutory responsibility to enforce the provisions of Chapter 479 in these other cases would have no impact on its efforts to fulfill that responsibility in the instant case.

    
    

19. An administrative agency does not lose its authority to enforce the statute it is charged with administering merely because it fails to prosecute each and every violation of that statute. If the agency chooses to exercise that authority in a particular case, the alleged violator can avoid prosecution based on a claim of disparate treatment only if it is shown that he is being singled out because of vindictiveness or some other impermissible motive on the part of the agency. See Downer v. State, 375 So.2d 840, 845 (Fla. 1979); Owen

    v. Wainwright, 806 F.2d 1519 (11th Cir. 1986). cert. denied, 107 S.Ct. 2466

    (1987). Respondent failed to make such a showing in the instant case. Absent such a showing, its contention that it should prevail because it was the victim of selective enforcement by Petitioner is without merit.

    
    

20. Since Respondent's sign is located in a prohibited area and the proof failed to demonstrate the applicability of any of the authorized exemptions from the provisions of section 479.07 and 479.11(1) or disparate treatment by Petitioner, Respondent's sign is in violation of said sections.

RECOMMENDATION

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

providing that the subject sign is in violation of Sections 479.07 and 479.11(1)

and requiring the removal of the sign.

DONE and ENTERED this 19th day of December, 1989 in Tallahassee, Florida.

JANE C. HAYMAN

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 19th day of December, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5050T

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1,2,3 and s.

2. Adopted in paragraph 4.

3. Subordinate to the result reached.

Respondent's proposed findings of fact are addressed as follows:

1. Irrelevant.

2. Addressed, in part, in paragraphs 5, and 6; in part, irrelevant,

3. Addressed in paragraphs 5 and 7.

4. Addressed in Paragraphs 6, 7, 8 and 9.

5. In part, subordinate to the result reached; in part, irrelevant.

6. Irrelevant.

COPIES FURNISHED:

Rivers Buford, Jr., Esquire

Florida Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Robert Scully, pro se President

The Scully Group, Inc.

Jones & Scully Aloha Foliage Growers

18955 Southwest 168th Street Miami, Florida 33187-1112

Ben G. Watts, P.E., Interim Secretary

Florida Department of Transportation Haydon Burns Building,

605 Suwannee Street

Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, MS 58

Thomas H. Bateman, III General Counsel

Florida Department of Transportation Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-005050

Orders for Case No: 89-005050