STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0189T

) FOOD MASTERS, INC., d/b/a ) SIMBO'S RESTAURANT AND TRUCK ) STOP, )

)

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 May 16, 1990. Respondent's manager, Frank G. Young, who testified as a Hearing Officer's witness, did not seek to act as a qualified representative, and respondent was not represented otherwise.

The Division of Administrative Hearings received the hearing transcript on June 18, 1990. Petitioner filed proposed findings of fact, conclusions of law and recommendation on June 28, 1990. Petitioner's proposed findings have been adopted, in substance.

APPEARANCE

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

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

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether maintaining a sign on which lights are turned on and off at two- or four-second intervals violates Section 479.11(5), Florida Statutes (1989), if the sign is visible from the main travelled way of a federal-aid primary highway?

PRELIMINARY STATEMENT

By violation notice dated December 5, 1989, the Department of Transportation (DOT) alleged that respondent had run afoul of the statutory prohibition against signs displaying "intermittent lights not embodied in the sign, or any rotating flashing light within 100 feet of the outside boundary of the right-of-way of any highway on the State Highway System, interstate highway system, or federal aid primary highway system."

After the respondent requested a hearing, DOT forwarded the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1), Florida Statutes (1989).

FINDINGS OF FACT

1. Twenty-five feet high, 20 feet west of the right of way of State Road 79, about a half mile north of Interstate 10 in Holmes County, stands a sign advertising Simbo's Restaurant and Truck Stop. Because the sign is on the premises of the business it advertises, no sign permit is required.

   
   

2. Since March 23, 1985, when the present owner acquired the property, it has spent substantial sums to operate the sign, which was originally erected some 15 years ago. It would cost about $100.00 to modify the sign so that all lights remained on the whole time the sign was lighted.

   
   

3. Only when a DOT quality assurance team from Tallahassee raised the question did the present proceedings arise. As a result of the team's visit to northwest Florida, some 200 notices of violations went out to owners of "flashing" signs.

   
   

4. On either side of the top (and largest) of five panels, neon script proclaims "Simbo's" in large letters rising diagonally from left to right. In smaller letters "STEAK" appears above and "SEA FOOD" below the name.

   
   

5. While the sign is on, "Simbo's" remains lit, but "STEAK" and "SEA FOOD" are illuminated only intermittently. First "STEAK" but not "SEA FOOD" shines for two seconds, then "SEA FOOD" but not "STEAK" is on for two seconds, then both are lit for two seconds, then neither. Both are off for no more than two seconds. While this sequence repeats, blue bulbs bordering the top panel go on and off at intervals of unspecified duration.

   
   

6. Milford C. Truett, DOT's acting outdoor advertising supervisor with responsibility for Holmes County, testified that a light is "flashing" if it is on or off for less than five seconds.

   
   

   CONCLUSIONS OF LAW

   
   

7. Since the DOT referred the matter to the Division of Administrative Hearings, "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

   
   

8. Section 479.11, Florida Statutes (1989), which makes no exception for signs that have stood for years without official complaint, provides:

   
   

   No sign shall be erected, used, operated, or maintained . . .

   
   

   (5) Which displays intermittent lights not embodied in the sign, or any rotating or flashing light within 100 feet of the outside boundary of the right-of-way of any highway on the . . . federal-aid primary highway system.

   
   

   The statute proscribes "flashing" lights but the prohibition does not extend to "intermittent lights . . . embodied in the sign."

9. No rationale for the ad hoc "five-second rule" was offered. What petitioner's counsel calls the "Department's District standard for a flashing sign," Petitioner's Proposed Findings of Fact, Conclusions of Law and Recommendation, p. 2, has not been promulgated as a rule, although it represents a deliberate change in a long-standing interpretation of the statute it purports to implement.

   
   

10. It was incumbent upon DOT "to explicate, support and defend by adequate record foundation its [abrupt shift in] policy." National Healthcorp.

    L.P. v. Department of Health and Rehabilitative Services, 560 So.2d 1184, 1185 (Fla. 1st DCA 1989) (reh. den. 1990) Whether a two-second display might be deemed a flash in some other context, a DOT employee's testimony that the statute should be so construed here is not dispositive. In maritime usage, these lights would be said to be occulting, rather than flashing. The record is devoid of any evidence regarding the power to distract or any other psychological effects of any given interval.

    
    

11. The statute distinguishes between "flashing" and "intermittent." In order to clarify the distinction, DOT could define "flashing" by setting an interval, a duration, a ratio between the two or some combination by rule. Because it has not done so, it is obliged to support its policy choice by evidence in every case. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). It has failed to do so here.

RECOMMENDATION

It is, accordingly recommended that DOT dismiss the violation notice. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990.

COPIES FURNISHED:

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, MS #58 Dept. of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

Dept. of Transportation Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

Vernon L. Whittier, Jr., Attorney Dept. of Transportation

605 Suwannee Street, MS #58

Tallahassee, FL 32399-0458

Frank G. Young

Simbo's Restaurant & Truck Stop Bonifay, FL 32425

Docket for Case No: 90-000189

Orders for Case No: 90-000189