STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4785T

) FLORIDA ROADMASTER INN SERVICES ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on January 16, 1992, in Lake City, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

605 Suwanee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: William J. Haley, Esquire

Nancy Staff Slayden, Esquire Post Office Box 1029

Lake City, Florida 32056-1029 STATEMENT OF THE ISSUES

The issue is whether respondent's sign is exempt from permit requirements under Subsection 479.16(1), Florida Statutes (1991).

PRELIMINARY STATEMENT

This matter began on June 21, 1991, when petitioner, Department of Transportation (DOT), issued a notice to show cause alleging that a road sign owned by respondent, Florida Roadmaster Inn Services Corporation, was in violation of Sections 479.105 and 479.07(1), Florida Statutes (Supp. 1984), and should be removed. On July 12, 1991, respondent requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on July 30, 1991, with a request that a hearing officer be assigned to conduct a formal hearing.

By notice of hearing dated August 15, 1991, a final hearing was scheduled on November 12 and 13, 1991, in Lake City, Florida. At petitioner's request, the matter was rescheduled to January 16 and 17, 1992, at the same location.

At final hearing, petitioner presented the testimony of Tom Brown, DOT outdoor advertising district administrator, Bruce Haydon, Glenel Bowden, DOT

outdoor advertising inspector, and Dr. Arvind B. Patel. Also, it offered petitioner's exhibits 1-3. All exhibits were received in evidence. At the conclusion of petitioner's case-in-chief, respondent moved to dismiss the proceeding. The motion was denied. Respondent presented the testimony of James

1. Bounds, an officer and shareholder, Victor J. Patel, and Dr. Arvind B. Patel, an officer and shareholder. Also, it offered respondent's exhibits 1-8. All exhibits were received in evidence except exhibit 7.

   
   

   The transcript of hearing was filed on February 10, 1992. At the request of petitioner, the time for filing proposed findings of fact and conclusions of law was extended to and including March 11, 1992. Both parties made timely filings. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   1. On June 21, 1991, petitioner, Department of Transportation (DOT), issued a notice to show cause alleging that a sign owned by respondent, Florida Roadmaster Inn Services Corporation (respondent or corporation), was in violation of the law because respondent had not obtained a permit. The sign is located north of the southbound exit ramp at the intersection of State Road 143 and Interstate Highway 75 (I-75) in Jennings, Florida, which is the first exit on I-75 after entering the State. The parties have stipulated that the structure meets the definition of a sign, I-75 is a part of the federal interstate system, the sign is within 660 feet of I-75, and on the date the notice to show cause was issued respondent did not have a permit from petitioner to erect the sign. The facts giving rise to this dispute are somewhat lengthy and are set forth in the following findings.

      
      

   2. The sign poles on which the sign is attached were erected in the northwestern quadrant of the intersection on an undisclosed date in 1988 by Victor J. Patel, who is the nephew of Dr. Arvind B. Patel, the secretary of and a 50% shareholder in the corporation. 1/ However, Dr. Patel acknowledged at hearing that he furnished his nephew with the capital necessary to erect the sign. At that time, a Best Western motel owned by Shree Realty, Inc., in which Dr. Patel's wife and nephew are principals, was located across the street on the south side of State Road 143 in the southwestern quadrant of the intersection and was managed by Victor. Although the motel then and now has its own sign, that sign is not visible to motorists traveling on I-75. The copy (printed message) on the sign which is in dispute here originally carried the logo of Best Western and a smaller message reading "North Florida Information Center". The smaller message was intended to advertise a small building at the foot of the sign which had also been built by Victor (with his uncle's capital) in 1988 and which was used as a tourist information center in conjunction with the motel.

      
      

   3. On an undisclosed date in 1990, Shree Realty, Inc. leased the motel to Jennings Motel Corporation (JMC), in which Bruce Haydon, J. Cary Parrish and George D. Haydon were principals. At the same time, the motel's name was changed to "Roadmaster Inn". A few months later, or around September 1990, the printed message on respondent's sign was changed to read "Roadmaster Inn" while underneath that message on a smaller sign were the words "North Fl. Tourist Inn- Fo". The issuance of the notice to show cause came about when a DOT outdoor advertising inspector, Glenel Bowden, had occasion to observe the change in the

      copy on the sign. After Bowden made a preliminary investigation, he concluded that the sign required a permit because it was an "off-premises sign", and because no permit tag was affixed to the sign, he recommended that a notice to show cause be issued. His recommendation was accepted, and the district administrator for outdoor advertising signed a notice to show cause on June 21, 1991. On the theory that the printed message merely reflected the name of the entity which was engaged in providing services on the premises, and thus the corporation was entitled to an exemption from permitting requirements under Subsection 479.16(1), Florida Statutes, respondent requested a hearing to contest the agency's preliminary determination.

      
      

   4. In order to qualify for an exemption of the nature sought by respondent, the owner of a sign must generally show that a business is being conducted on the premises (land) where the sign is located, the sign carries the name and is an integral part of the establishment, and the business is the only activity being conducted on the premises. In this regard, it is agreed that no other businesses are located on the premises except the questioned activities of respondent. In addition, the building in which the activity is being conducted must meet the minimum requirements of the Southern Building Code. As to this latter requirement, DOT stated at hearing that it does not contest the structural integrity of the building. However, it is DOT's position that there is no legitimate business activity being conducted on the premises by the corporation, and that the sign is actually being used to promote the motel business across the street.

      
      

   5. Respondent is a Florida corporation formed on July 3, 1990. The articles of incorporation state that the corporation's nature of business is to "engage in consulting and marketing services to the lodging industry and any other related consulting and marketing to the food, fuel and lodging industries." It also lists the location of the sign (I-75 and SR 143, Route 1, Box 222A, Jennings, Florida) as its principal place of business.

      
      

   6. The corporation has two shareholders, Dr. Patel, who resides in Hoffman Estates, Illinois (the greater Chicago area) and serves as secretary, and James

      T. Bounds, a self-employed business consultant who works out of his home in Ocala, Florida, and serves as president of the corporation. Both men own 50% of the shares of stock and are the only two directors. The corporation has never had any employees on its payroll. Although the corporation received a federal taxpayer identification number in 1990, a return has never been filed since the corporation has never generated any income. Likewise, it has no corporate checking or bank account nor a telephone number in its corporate name. In addition, it has no occupational license from the City of Jennings or Hamilton County. The corporate assets consist of a leasehold interest in an easement to and the property on which the sign sits, marketing aids, presentation material and brochures, all of unknown value.

      
      

   7. According to Bounds, who is identified as the corporation's registered agent at his Ocala address, his contribution to the corporation (in return for one-half of the stock) is personal services in the form of travel expenses incurred to perform "marketing services". He estimated he has contributed between $30,000 and $50,000 in the form of marketing service expenses since the inception of the corporation. On the other hand, Dr. Patel claimed a personal contribution in the corporation of approximately $30,000 to $40,000 in return for his share of the stock. This amount was derived by taking the bills Dr. Patel had paid for publications, maintenance, utilities, interest on the sign and building and the like. Because they are "good friends", Bounds and Dr. Patel have no written agreement defining each other's contributions to the

      corporation nor stating who is responsible for providing a particular service or paying bills.

      
      

   8. The site of the sign was chosen because of its high visibility and close proximity to I-75 on which numerous truckers and tourists enter the state. According to Bounds, who takes credit for originating the idea for the business, the purpose of the corporation is to market a service to various motels, including Roadmaster Inns, and secure agreements or contracts from truckers to use those motel facilities at a reduced rate. If successful in its endeavors, the corporation would guarantee a 20% - 30% weekly occupancy rate for the motels that use its services. As an aid in communicating with the truckers and other motorists, the corporation represents that if it prevails in this action, it intends to secure a radio license from the Federal Communications Commission and operate a special low-frequency broadcasting station at the small building to give additional information on the corporation's services to passing motorists within a five mile radius who tune in that frequency on their radios. An employee would be stationed in the building to hand out brochures and to communicate with truckers via the radio. Bounds added that the corporation is also seeking to secure a trademark on the name "Roadmaster Inns" with the U. S. Patent Office, and once obtained, the corporation will seek to market Roadmaster Inn franchises. As of the date of hearing, Bounds represented that the corporation had registered the name "Roadmaster Inn" in the states of Florida and Georgia.

      
      

   9. Bounds is responsible for the day to day management of the corporation. He acknowledged that his activities to date on behalf of the corporation consist of making "direct calls" (presumably by telephone from his home or automobile) on trucking companies at their place of business in an attempt to secure contracts for the drivers to use various motels at reduced rates. Because the corporation has no telephone, Bounds advises potential clients to contact him at his Ocala home. Except for speaking with a developer in Tampa a week prior to hearing about building a Roadmaster Inn at a Tampa development project, there were no other specifics given regarding Bounds' corporate activities. Indeed, there is no evidence that, since the corporation was formed almost two years ago, any contracts have been executed by trucking companies or other entities, that any motels have agreed to use the services of the corporation, or that any Roadmaster Inn franchises have been sold. This is confirmed by the fact that the corporation has never generated any revenue.

      
      

   10. Various brochures have been printed and distributed ostensibly on behalf of the corporation. One brochure merely advertises a Roadmaster Inn owned by Dr. Patel and located in Valdosta, Georgia, while another advertises the Roadmaster Inn in Jennings, Florida. Both carry the same "800" telephone number, which is answered by the reservationist at a Roadway Inn whose location is not of record. Neither brochure makes reference to the corporation or its services. A third brochure advertises the brand name "Roadmaster Inn" and gives a post office box in Des Plaines, Illinois as its address. According to Dr. Patel, this brochure has generated "several inquiries a week" at his office in Des Plaines. Again, however, the brochure does not carry the corporation's name and simply provides advertising for the generic name "Roadmaster Inn". It is noteworthy that no advertisement offered into evidence at hearing reflects the corporation address as the same address where the sign is erected.

       
       

   11. As noted earlier, the building at the base of the sign was once used by the Best Western motel as a "tourist information center" at which pamphelets describing various tourist attractions were handed out to motorists just entering the State. According to Bounds, the building was originally designed

       to accommodate one person to hand out information brochures to the public and communicate with truck drivers by CB radio from a low frequency radio tower. However, a CB radio has never been installed. The building, which was described by Bounds as being "very small" and by Bowden as being around 8' x 12' in size with a counter, display case for pamphelets and two chairs, has electricity, running water, air-conditioning, restroom facilities, and an access ramp for the handicapped. Although there has been no telephone at the building for some time, Victor Patel, the former manager of the motel, claimed that prior to July 1991 there was a telephone in the building "off and on".

       
       

   12. The easiest route from State Road 143 to the building is on a road which runs through a trailer park located off of State Road 143. However, the corporation was denied use of that road by the park's owner and consequently anyone desiring to visit the premises must use an unlighted, unmarked and unpaved "track" which runs along a fence on State Road 143. The track, which crosses a large drainage ditch, is actually an easement assigned to the corporation by Dr. Patel and is discussed in a subsequent finding. There are no signs directing members of the public on how to travel to the building. In this regard, Bounds agreed that access to the land on which the sign and building are located is not "particularly easy" for members of the public.

       
       

   13. The corporation has never had an employee since its formation. At one time, an elderly individual, Roy Cammeron, spent several hours per day for almost a year manning the booth. Despite Dr. Patel's suggestion to the contrary, 2/ it may be reasonably inferred from the evidence that Cammeron was an employee of the motel since the building key was kept at the motel and Cammeron was required to pick up and return the key after each visit to the building, he was supervised by the motel's manager, Victor J. Patel, who monitored Cammeron's activities, and Cammeron maintained constant communications with Victor by walkie-talkie. Also, Victor stated that one of Cammeron's duties was to hand out motel brochures. Besides Cammeron, Bounds contended that on undisclosed occasions he visited the building "usually" twice a week for unspecified purposes. However, he conceded that business on behalf of the corporation is conducted out of his home.

       
       

   14. At hearing, Dr. Patel denied that he has any ownership interest in the Roadmaster Inn which is located across the street from the corporation's sign. However, the corporation which owns the motel and leases the same to JMC uses the same address in Hoffman Estates, Illinois as does Dr. Patel, and Dr. Patel testified that he participated on behalf of Shree Realty, Inc. in its negotiations with JMC for the lease of the property in 1990 and for a promissory note later executed by two JMC principals in favor of Shree Realty on November 27, 1991. These considerations and further testimony given by Dr. Patel (see, for example, page 119 of transcript) support a finding that Dr. Patel either owns or exercises control over the motel.

       
       

   15. The land on which the sign and building are located is actually owned by Willie and Martha Butler who reside in Jennings. On July 22, 1988, they leased for a period of twenty years the land and an easement for access to the property to Victor L. Patel. 3/ The lease authorized Victor to construct a sign. The following day, Victor leased for a period of 48 months his interest in the land and easement to his uncle, who then furnished Victor with $80,000 to construct the sign and small building a short time later. By an undated and unwitnessed typed addendum to the lease, but presumably after July 3, 1990, Dr. Patel purportedly assigned his rights in the lease to the corporation.

   16. According to Bruce Haydon, who represented he is president of JMC, that entity has no proprietary interest in the sign. However, under the terms of its lease with Shree Realty, Inc., JMC is obligated to pay the electric bill for the illuminated sign and the monthly lease payments owed the Butlers under the real property lease originally executed by the Butlers and Victor Patel in July 1988. Although the lease was not offered into evidence, these terms were confirmed by Dr. Patel. The corporation does not directly receive the JMC payments. However, even though there is no formal agreement between JMC and the corporation, by making these payments, JMC effectively relieves the corporation (as the leaseholder) of the responsibility of paying the sign's electric bill and the cost of the easement to its premises. The lease provides further that if the sign is removed as a result of a proceeding such as this, there will be no reduction in the amount of lease payments owed by JWC. At hearing, Haydon also contended that Dr. Patel orally agreed that if the motel acquires an Econo Lodge franchise, as it now plans to do, and changes its name from Roadmaster Inn to Econo Lodge, Dr. Patel will change the copy on the sign to "Econo Lodge". Dr. Patel denied this assertion. It should be noted that Dr. Patel (presumably on behalf of Shree Realty, Inc.) is now embroiled with Haydon and JMC in a "major" lawsuit over a substantial amount of money.

       
       

   17. Before erecting the sign, Dr. Patel spoke with Bowden, the DOT sign inspector. Bowden advised him that there must be a business conducted on the premises where the sign was erected in order for the sign to be legal. However, Bowden would not commit this advice to writing, and he told Dr. Patel that DOT would have to "evaluate" the matter once the sign was erected in order to see if it was legal. Thus, there were no representations by DOT to respondent regarding the type of activities necessary for respondent to obtain an exemption, there was no later change in position by DOT, and therefore respondent could not have relied on such representations to its detriment.

       
       

   18. Based on the foregoing matters, it is found that there were no meaningful business activities conducted by the corporation on the premises where the sign is located either on or before June 19, 1991, when the notice to show cause was issued, or from that time forward to the date of final hearing. To the extent any activities have been conducted on behalf of the corporation, these have been conducted at such places as Ocala, Florida, and Des Plaines, Illinois. Therefore, it is found that the sign and its message are not an integral part of a business being conducted on the premises.

       
       

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

       
       

   20. As the party seeking to remove respondent's sign, petitioner is obligated to prove by the preponderance of the evidence that the sign is illegally erected. Having presented evidence through a stipulation to show that the structure is a sign, no permit tag was affixed to the sign, and it is located within 660 feet of an interstate highway, the burden then shifted to respondent to overcome the presumption of illegality and to show that it was entitled to an exemption. Henderson Sign Service v. Department of Transportation, 390 So.2d 159 (Fla. 1st DCA 1980). As such, respondent's motion to dismiss this proceeding on the ground DOT failed to present a prima facie case was properly denied.

   21. The following statutes govern this controversy. First, Subsection 479.07(1), Florida Statutes (1991) provides that:

       
       

       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 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.

       
       

       Thus, unless a person qualifies for an exemption under Section 479.16, Florida Statutes (1991), he may not erect and maintain a sign on any portion of the interstate highway system without first obtaining a permit. Subsection 479.16(1) provides that the following type of sign is exempt from the permitting requirements of chapter 479:

       
       

       1. Signs erected on the premises of an establishment, which signs consist 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 meet the minimum requirements of the Southern Building Code. 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.

          
          

          Although not a model of clarity, the statute basically provides that a sign erected on the premises of an establishment must relate to the activities being conducted on the premises. In other words, the sign (and its message) must be an integral part of a business being conducted on the land. Finally, Subsection 479.01(13), Florida Statutes (1991) defines the term "premises" as follows:

          
          

          "Premises" means an area of land occupied by the buildings or other physical uses which

          are an integral part of the activity conducted upon the land and such open spaces as are arranged and designed to be used in conjunction with that activity.

          
          

          This definition requires that the sign be on the premises (land) where the activities of the business are being conducted.

          
          

   22. Respondent's closing argument and proposed recommended order appear to raise three broad contentions as to why it is entitled to an exemption. In brief, it first contends that on June 19, 1991, when the notice to show cause was issued, there was corporate activity on the premises. Second, it asserts

       that because of certain representations made by a DOT inspector, DOT is now equitably estopped from removing the sign. Finally, it relies upon the rationale set forth in Harrison v. State, Department of Transportation, 349 So.2d 720 (Fla. 1st DCA 1977) for the proposition that evidence to show that the sign owner intends to develop the business in the future is sufficient to show entitlement to an exemption. These contentions will be addressed separately.

       
       

   23. The more persuasive and credible evidence supports a conclusion that there were no meaningful and legitimate business activities being conducted on the premises where the sign is located either on or before June 19, 1991, when the notice to show cause was issued, or from that date forward to the date of hearing. The more credible evidence further shows that to the extent any activities may have been conducted on behalf of the corporation, these have been conducted off-premises at such places as Ocala, Florida, and Des Plaines, Illinois. This being so, it is concluded that the sign and message are not an integral part of any business being conducted by respondent on the premises.

       
       

   24. Next, there is insufficient evidence to support a conclusion that estoppel should apply against DOT so as to preclude removal of the sign. In Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215-216 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987), the court held that any decision involving the application of equitable estoppel depends upon properly made findings of fact as to each of three elements of estoppel: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. In this case, the evidence shows that there were no

       representations made by DOT to the corporation prior to the erection of the sign except that a business must be conducted on the premises in order for the sign to be legal. In addition, DOT advised respondent that it would have to evaluate the matter once the sign was erected. Since there were no representations by DOT as to a material fact that were contrary to later-asserted positions, the argument that DOT is now estopped from removing the sign is deemed to be unavailing.

       
       

   25. Next, in Harrison, the court rejected as being unduly restrictive DOT's interpretation of the term "place of business" as it was then defined in Subsection 479.16(1), Florida Statutes (1975). In that case, DOT had denied a request for an exemption under the cited statute on the ground the sign was more than 100 feet from applicant's place of business (a truck stop). In reaching that conclusion, DOT construed the term "place of business" to mean the existing structure on the premises where the applicant's cash register could be found.

       On appeal, the court held that the sign could be located more than 100 feet from the truck stop and placed within 100 feet of contiguous property that was cleared, but not yet built, for other parts of applicant's total project (a motel, campground and wastewater treatment plant). 4/ Respondent suggests that this case stands for the proposition that if evidence is presented to show that the corporation intends to develop and implement the business in the future, the corporation is entitled to continue using its sign and enjoying an exemption pending the development of the business.

       
       

   26. The facts here are distinguishable from those present in that decision. More specifically, in Harrison, the sign owner already had an on- going, viable business enterprise (truck stop) on the premises and intended to place his sign on contiguous property where contracts had been executed and land cleared for the purpose of constructing a motel, campground and sewage treatment plant as a part of the same business. Here, the corporation has never had any

       meaningful business activities on the questioned premises since the corporation was formed almost two years ago. Indeed, the more persuasive evidence indicates that what little activity occurred on the premises before the issuance of the notice to show cause was to promote the motel that sits across the street.

       Accordingly, it is concluded that the rationale in Harrison does not support respondent's entitlement to an exemption.

       
       

   27. Finally, in addition to the foregoing reasons, it is noted that subsection 479.16(1) provides that "if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection." The evidence reflects, and respondent concedes, that the current motel lessee (JMC) is required to pay Shree Realty, Inc. the cost of the monthly electric bill for illuminating the sign and the cost of the easement to the premises where the sign is located. Since the corporation has a leasehold interest in the easement which provides access to its premises and ostensibly benefits from the sign's message, it logically should be responsible for the payment of these two obligations. Therefore, JMC's payments effectively relieve the corporation (and Dr. Patel) of that obligation and constitute "rent" within the meaning of the statute. As such, the sign cannot be deemed to be exempt under this subsection.

       
       

   28. In summary, there is insufficient evidence to show that respondent is entitled to an exemption for its sign. Similarly, petitioner has shown that the sign is illegally erected. This being so, respondent's request for an exemption should be denied, and the sign should be removed in the manner directed by petitioner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that a final order be entered denying respondent's request for an exemption and ordering the removal of respondent's sign located at State Road

143 and I-75 in Jennings, Florida.

DONE AND ORDERED this 24th day of March, 1992, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 24th day of March, 1992.

ENDNOTES

1/ Apparently, there are two persons with the name Victor J. Patel who have some involvement in this proceeding. One is Dr. Patel's nephew while the other person, who testified in this cause, is the former manager of the Best Western motel. The latter person's relationship, if any, to Dr. Patel is unknown.

Unfortunately, the record is less than clear on this matter.

2/ Doctor Patel testified that he paid Cammeron's salary on behalf of the corporation through a separate property management corporation located in Illinois, thus suggesting Cammeron was an employee of the corporation.

Conversely, Bounds stated that Cammeron was not a corporation employee.

3/ Although the lease agreement reflects that Victor L. Patel was the lessee, Dr. Patel continually referred to the original lessee as "V. J." or Victor J. Patel, his nephew. It is assumed that Victor L. Patel and V. J. are the same person.

4/ Since Harrison, subsection 479.16(1) has been amended to eliminate the requirement that, to be exempt, an "on-premises" sign could not be more than 100 feet from the place of business.

APPENDIX TO RECOMMENDED ORDER

Petitioner: *

43. Partially adopted in finding of fact 18. 44-46. Partially adopted in finding of fact 8.

47. Partially adopted in finding of fact 5. 48-54. Partially adopted in finding of fact 6.

1. Rejected as being contrary to the evidence.

2. Partially adopted in finding of fact 6.

3. Partially adopted in finding of fact 9.

4. Partially adopted in finding of fact 11.

5. Partially adopted in finding of fact 13.

6. Partially adopted in finding of fact 6.

7. Partially adopted in finding of fact 13.

8. Rejected as being unnecessary.

9. Partially adopted in finding of fact 9.

10. Rejected as being unnecessary.

11. Partially adopted in finding of fact 3. 66-67. Rejected as being unnecessary.

*Petitioner did not submit proposed findings 14, 15 and 19. Respondent:

1. Rejected as being a conclusion of law.

2-3. Substantially adopted in finding of fact 1.

1. Partially adopted in finding of fact 3.

2. Partially adopted in finding of fact 1.

3. Partially adopted in findings of fact 4 and 11.

4. Partially adopted in finding of fact 11.

5. Partially adopted in finding of fact 6.

6. Partially adopted in finding of fact 2. 10-11. Partially adopted in finding of fact 5.

12. Rejected as being unnecessary.

13-15. Partially adopted in finding of fact 8.

1. Rejected as being contrary to the more persuasive evidence. See finding of fact 13.

2. Partially adopted in finding of fact 13.

3. Partially adopted in finding of fact 9. 19-20. Partially adopted in finding of fact 6.

21. Partially adopted in finding of fact 15. 22-23. Partially adopted in finding of fact 6.

1. Partially adopted in finding of fact 8.

2. Partially adopted in finding of fact 7.

3. Partially adopted in finding of fact 10.

4. Partially adopted in finding of fact 3.

28-29. Rejected as being contrary to the more persuasive evidence. See finding of fact 14.

1. Rejected as being contrary to the more persuasive evidence. See finding of fact 16.

2. Partially adopted in finding of fact 7. 46-48. Rejected as being irrelevant.

Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being contrary to the more credible and persuasive evidence, subordinate, unnecessary, irrelevant, cumulative, or a conclusion of law. In addition, only some of petitioner's, and none of respondent's proposed findings, carried a citation to the record as required by Rule 22I-6.031(3), F. A. C.

COPIES FURNISHED:

Charles G. Gardner, Esquire 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458

William J. Haley, Esquire

P. O. Box 1029

Lake City, FL 32056-1029

Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, M. S. 58 605 Suwanee Street

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO.91-4785T

FLORIDA ROADMASTER INN SERVICES CORPORATION,

Respondent.

/

FINAL ORDER

On June 21,1991, the Department of Transportation (hereinafter DEPARTMENT) issued a notice to show cause alleging that an outdoor advertising sign owned by respondent, Florida Roadmaster Inn Services Corporation (hereinafter ROADMASTER), was in violation of Sections 479.105 and 479.07(1), Florida Statutes, and should be removed. On July 12, 1991, respondent timely requested a formal hearing to contest the agency's intended action. Pursuant to Section 120.57, Florida Statutes, the matter was then referred to the Division of Administrative Hearings (hereinafter DOAH).

Pursuant to notice, a formal hearing was conducted in this case on January 16, 1992, in Lake City, Florida, before Donald R. Alexander, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances on behalf of the parties were as follows: For DEPARTMENT: Charles G. Gardner, Esquire

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For ROADMASTER: William J. Haley, Esquire

Nancy Staff Slayden, Esquire Post Office Box 1029

Lake City, Florida 32056-1029

At issue is whether ROADMASTER's sign is exempt from permit requirements under section 479.16(1), Florida Statutes. At hearing, DEPARTMENT presented the testimony of Tom Brown, the DEPARTMENT outdoor advertising district administrator; Bruce Haydon; Glenn L. Bowden, DEPARTMENT outdoor advertising inspector; and Dr. Arvin B. Patel. Also, it offered DEPARTMENT's exhibits 1-3. All exhibits were received into evidence. At the conclusion of DEPARTMENT's case-in-chief, ROADMASTER moved to dismiss the proceeding. The motion was denied. ROADMASTER presented the testimony of James T. Bounds, an officer and shareholder of ROADMASTER; Victor J. Patel; and Dr. Arvin B. Patel, an officer and shareholder of ROADMASTER. ROADMASTER also offered its exhibits 1-8. All exhibits were received into evidence except ROADMASTER's exhibit 7.

ROADMASTER filed exceptions to the Hearing Officer's Recommended Order.

Those exceptions are addressed as follows:

Exception No. 1. Accepted insofar as the term "principle" is used to refer to one with an ownership interest. There is, however, evidence to the effect that the Best Western was operated by Dr. Patel's nephew, V.J. Patel. (T. p. 125).

Exception No. 2. Rejected. The historical uses of the sign and location are relevant to evaluating the veracity of ROADMASTER's current claim to a statutory exemption.

Exception No. 3. Accepted insofar as the entire sentence is more appropriately included in the Final Order as a Conclusion of Law rather than a Finding of Fact.

Exception No. 4. Rejected. James T. Bounds testified that the purported license was unsigned and undated. (T. P. 47). Mr. Bounds also testified at his deposition that he did not renew the business license. (T. P. 48). Dr. Patel testified that he was told by representatives of Jennings that the license had to be signed by the mayor. (T P. 106). There is no record evidence the license was ever signed. Furthermore, Dr. Patel testified that the license, even if signed, would have expired on September 30, 1991. (T P. 107). Dr. Patel also testified that he no longer needs a license to operate the business. (T. P.

107). Hence, there is competent substantial evidence to show that ROADMASTER never had an occupational license from the City of Jennings or Hamilton County.

Exception No. 5. Rejected. James T. Bounds testified that there is no telephone in the name of ROADMASTER at the site. (T. P. 37). This provides competent substantial evidence for the Hearing Officer's fmding of fact.

Exception No. 6. Accepted insofar as this relates solely to the characterization of the actual statements made by Victor Patel but not insofar as it relates to the Hearing Officer's finding as to the truth and veracity of those statements. (T. P. 98).

Exception No. 7. Rejected. Mr. Bounds testified that Mr. Cammeron was not an employee of ROADMASTER nor did ROADMASTER pay social security for him or withhold federal taxes. (T. P. 31, 37-38). The fact that Dr. Patel agreed to pay the salary of employees of ROADMASTER does not necessarily mean such employees existed. The fact that Dr. Patel paid the salary of Mr. Cammeron does not necessarily mean Mr. Cammeron was an employee of the corporation as Dr.

Patel may have paid the salaries of various employees of various other businesses. Furthermore, Dr. Patel testified that Mr. Cammeron was paid from a property management corporation out of Illinois and that Mr. Cammeron's duties included picking up truck drivers and bringing them down from Valdosta as opposed to performing work at the site for ROADMASTER. (T. P. 123). As to the hours Mr. Cammeron spent at the building, Mr. Bowden testified that more often than not on his visits, there was no one present at the building. (T. P. 135).

Exception No. 8. Rejected. There is competent substantial evidence in the record to support these findings including the testimony of Mr. Bounds (T. P. 53), ROADMASTER's Exhibit No. 3, Mr. Hayden's testimony (T. P. 88-89), Dr.

Patel's testimony (T.P. 104, 126).

Exception No. 9. Rejected. Irrelevant in that ROADMASTER did not prove that the conditions testified to by Dr. Patel were ever met. Hence, there is no proof of a change in position on the part of the DEPARTMENT.

Exception No. 10. Rejected. There is competent substantial evidence in the record to support the Hearing Officer's determination of fact. (T- P.44, #59- 60, #110-111, #135-136, #156, #162-163). Also rejected as to the relevancy of the dates because this is a legal determination rather than a factual one.

Exception No. 11. Accepted insofar as the sign and message itself is not required to be an integral part of the business. The statute does, however, require the sign to be located on the premises. Section 479.01(13) defines premises to be "an area of land occupied by the buildings or other physical uses which are an integral part of the activity conducted upon the land. "

Hence, the sign must be located on land or property that is an integral part of the activity conducted upon the land. See also McDonald's Corporation v.

Department of Transportation, 535 So.2d 323, 326 (Fla. 2d DCA 1988).

Exception No. 12. Accepted in part; rejected in part. As to the lack of a statutory requirement that the sign and message be an integral part of any business conducted on the premises, see Exception No. 11. Rejected as to all else. The language of Section 479.16(1), in using the term "premises," "establishment" and other references to various activities supports an agency interpretation that the establishment be an ongoing business at least in the sense of a minimal level of meaningful activity customary for that particular kind of business such that the business establishment exists in substance rather than merely in form.

Exception No. 13. Rejected as contrary to the evidence. Exception No. 14. Rejected. See Conclusion of Law No. 7 herein. Exception No. 15. Rejected as unsupported by the evidence.

Exception No. 16. Rejected. ROADMASTER does not state to which Conclusion of Law it is referring and these statements appear to be factual rather than legal.

Exception No. 17. Whether ROADMASTER does or does not own or have any ownership interest in the motel or whether Mr. Bounds does or does not have any financial interest in the motel is rejected as irrelevant. The remainder which was rejected by the Hearing Officer as contrary to the evidence (see Recommended Order Appendix) is rejected herein as there is competent substantial evidence for the Hearing Officer's finding. (T. p. 71, 73-74, 76, 78, 81-82, 90, 93,

111-112, 114,119-120).

Exception No. 18. Rejected. See discussion under Exception No. 17. Exception No. 19. Rejected. See discussion under Exception No. 17.

Exception No. 20. Rejected as not being a legal conclusion and as irrelevant insofar as its purpose as opposed to its actual activity is concerned.

Exception No. 21. Rejected as unsupported by the evidence. Exception No. 22. rejected as unsupported by the evidence. Exception No. 23. Rejected as unsupported by the evidence.

Exception No. 24. Rejected in that the Department did not misrepresent the requirements per Finding of Fact No. 28.

FINDINGS OF FACT

Based upon a review of the record in its entirety, including the Hearing Officer's Recommended Order, the hearing transcript, exhibits entered into evidence, and the filed exceptions, the following findings of fact are made:

1. On June 21, 1991, the DEPARTMENT issued a notice to show cause alleging that a sign owned by ROADMASTER was in violation of the law because ROADMASTER's sign was not permitted. The sign is located north of the southbound exit ramp at the intersection of State Road 143 and Interstate Highway 75 (1-75) in Jennings, Florida, which is the first exit on 1-75 after entering the state.

   The parties have stipulated that the structure meets the definition of a sign, 1-75 is a part of the federal interstate system, the sign is within 660 feet of 1-75, and that on the date the notice to show cause was issued, ROADMASTER did

   not have a permit issued by the DEPARTMENT to erect the sign. The facts giving rise to this dispute are somewhat lengthy and are set forth in the following findings.

   
   

2. The sign poles on which the sign is attached were erected in the northwestern quadrant of the intersection on an unspecified date in 1988 by Victor J. Patel, who is the nephew of Dr. Arvin B. Patel. /1 Dr. Patel is secretary and 50 percent shareholder of ROADMASTER. However, Dr. Patel acknowledged at hearing that he furnished his nephew with the capital necessary to erect the sign.

   
   

3. At the time the sign poles were erected, a Best Western motel managed and operated by Dr. Patel's nephew and owned by Shree Realty, Inc., in which Dr. Patel's wife is a minority shareholder, was located across the street on the south side of State Road 143 in the southwestern quadrant of the intersection. Although the motel has its own sign, both when it was a Best Western and now when it is a Roadmaster, that sign is not visible to motorists traveling on 1- 75.

   
   

4. The copy (printed message) on the sign which is in dispute here originally carried the logo of Best Western and a smaller message reading "North Florida Information Center." The smaller message was intended to advertise a small building at the foot of the sign. The building was built by Victor (with his uncle's capital) in 1988 and was used as a tourist information center in conjunction with the motel.

   
   

5. On an unspecified date in 1990, Shree Realty, Inc. leased the motel to Jennings Motel Corporation (JMC), in which Bruce Haydon, J. Cary Parrish and George D. Haydon are principals. At the same time, the motel's name was changed to "Roadmaster Inn."

   
   

6. A few months after Shree leased the motel to Jennings, or around September, 1990, the printed message on ROADMASTER's sign was changed to read "Roadmaster Inn" while underneath that message on a smaller sign were the words "North Fl. Tourist Inn-Fo."

   
   

7. The issuance of the notice to show cause came about when a DEPARTMENT outdoor advertising inspector, Glenn Bowden, had occasion to observe the change in the copy on the sign. After Bowden made a preliminary investigation, he concluded that the sign required a permit because it was an "off-premises sign", and because no permit tag was affixed to the sign, he recommended that a notice to show cause be issued. His recommendation was accepted, and the district administrator for outdoor advertising signed a notice to show cause on June 21, 1991.

   
   

8. On the theory that the printed message merely reflected the name of the entity which was engaged in providing services on the premises, and thus the corporation was entitled to an exemption from permitting requirements under Subsection 479.16(1), Florida Statutes, ROADMASTER requested a hearing to contest the agency's preliminary determination.

   
   

9. Although the record reflects that no other businesses are located on the premises except the questioned activities of ROADMASTER. However, there does not appear to be any agreement or stipulation between the parties as to this finding.

10. In addition, the building in which the activity is being conducted must meet the minimum requirements of the Southern Building Code. As to this latter requirement, the DEPARTMENT stated at hearing that it does not contest the structural integrity of the building.

    
    

11. It is the DEPARTMENT's position that there is no legitimate business activity being conducted on the premises by the corporation, and that the sign is actually being used to promote the motel business across the street.

    
    

12. ROADMASTER is a Florida corporation formed on July 3, 1990. The articles of incorporation state that the corporation's nature of business is to "engage in consulting and marketing services to the lodging industry and any other related consulting and marketing to the food, fuel and lodging industries." The articles of incorporation also list the location of the sign (1-75 and SR 143, Route 1, Box 222A, Jennings, Florida) as its principal place of business.

    
    

13. ROADMASTER has two officers and shareholders -- Dr. Patel, who resides in Hoffman Estates, Illinois (the greater Chicago area) and serves as secretary; and James T. Bounds, a self-employed business consultant who works out of his home in Ocala, Florida, and serves as president of the corporation. Each owns

    50 percent of the shares of stock and are the only two directors.

    
    

14. ROADMASTER has never had any employees on its payroll. Although ROADMASTER received a federal taxpayer identification number in 1990, a return has never been filed since ROADMASTER has never generated any income.

    
    

15. ROADMASTER has no corporate checking or bank account nor a telephone number in its corporate name.

    
    

16. ROADMASTER has no occupational license from the City of Jennings or Hamilton County.

    
    

17. ROADMASTER's corporate assets consist of a leaseholder interest in an easement to and the property on which the sign sits, marketing aids, presentation material and brochures, all of unknown value.

    
    

18. According to Bounds, who is identified as ROADMASTER's registered agent at his Ocala address, his contribution to the corporation (in return for one-half of the stock) is personal services in the form of travel expenses incurred to perform "marketing services." Bounds estimated he has contributed between $30,000 and $50,000 in the form of marketing service expenses since the inception of the corporation. On the other hand, Dr. Patel claimed a personal contribution in the corporation of approximately $30,000 to $40,000 in return for his share of the stock. This amount was derived by taking the bills Dr. Patel had paid for publications, maintenance, utilities, interest on the sign and building and the like. Because they are "good friends," Bounds and Dr. Patel have no written agreement defining each other's contributions to the corporation nor stating who is responsible for providing a particular service or paying bills.

    
    

19. The sign site was chosen because of its high visibility and close proximity to 1-75 on which numerous truckers and tourists enter the state. According to Bounds, who takes credit for originating the idea for the business, the purpose of the corporation is to market a service to various motels, including Roadmaster Inns, and secure agreements or contracts from truckers to use those motel facilities at a reduced rate. If successful in its endeavors,

    the corporation would guarantee a 20 percent 30 percent weekly occupancy rate for the motels that use its services. As an aid in communicating with the truckers and other motorists, the corporation represents that if it prevails in this action, it intends to secure a radio license from the Federal Communications Commission and operate a special low-frequency broadcasting station at the small building to give additional information on the corporation's services to passing motorists within a five mile radius who tune in that frequency on their radios. An employee would be stationed in the building to hand out brochures and to communicate with truckers via the radio. Bounds added that the corporation is also seeking to secure a trademark on the name "Roadmaster Inns" with the U.S. Patent Office, and once obtained, the corporation will seek to market Roadmaster Inn franchises. As of the date of hearing, Bounds represented that the corporation had registered the name "Roadmaster Inn" in the states of Florida and Georgia.

    
    

20. Bounds is responsible for the day to day management of ROADMASTER. He acknowledged that his activities to date on behalf of the corporation consist of making "direct calls" (presumably by telephone from his home or automobile) on trucking companies at their place of business in an attempt to secure contracts for the drivers to use various motels at reduced rates. Because the corporation has no telephone, Bounds advises potential clients to contact him at his Ocala home. Except for speaking with a developer in Tampa a week prior to hearing about building a Roadmaster Inn at a Tampa development project, there were no other specifics given regarding Bounds' corporate activities. Indeed, there is no evidence that, since the corporation was formed almost two years ago, any contracts have been executed by trucking companies or other entities, that any motels have agreed to use the services of the corporation, or that any Roadmaster Inn franchises have been sold. This is confirmed by the fact that the corporation has never generated any revenue.

    
    

21. Various brochures have been printed and distributed ostensibly on behalf of the corporation. One brochure merely advertises a Roadmaster Inn owned by Dr. Patel and located in Valdosta, Georgia, while another advertises the Roadmaster Inn in Jennings, Florida. Both carry the same "800" telephone number, which is answered by the reservationist at a Roadway Inn whose location is not of record. Neither brochure makes reference to the corporation or its services. A third brochure advertises the brand name "Roadmaster Inn" and gives a post office box in Des Plaines, Illinois as its address. According to Dr. Patel, this brochure has generated "several inquiries a week" at his office in Des Plaines, Illinois. Again, however, the brochure does not carry the corporation's name and simply provides advertising for the generic name "Roadmaster Inn." It is noteworthy that no advertisement offered into evidence at hearing reflects the corporation address as the same address where the sign is erected.

    
    

22. As noted earlier, the building at the base of the sign was once used by the Best Western motel as a "tourist information center" at which pamphlets describing various tourist attractions were handed out to motorists just entering the State. According to Bounds, the building was originally designed to accommodate one person to hand out information brochures to the public and communicate with truck drivers by CB radio from a low frequency radio tower. However, a CB radio has never been installed. The building, which was described by Bounds as being "very small" and by Bowden as being around 8' x 12' in size with a counter, display case for pamphlets and two chairs, has electricity, running water, air-conditioning, restroom facilities, and an access ramp for the handicapped. Although there has been no telephone at the building for some

    time, Victor Patel, the former manager of the motel, claimed that prior to July, 1991, there was a telephone in the building which was "cut off and on."

    
    

23. The easiest route from State Road 143 to the building is on a road which runs through a trailer park located off of State Road 143. However, the corporation was denied use of that road by the park's owner and consequently anyone desiring to visit the premises must use an unlighted, unmarked and unpaved "track" which runs along a fence on State Road 143. The track, which crosses a large drainage ditch, is actually an easement assigned to the corporation by Dr. Patel and is discussed in a subsequent finding. There are no signs directing members of the public on how to travel to the building. In this regard, Bounds agreed that access to the land on which the sign and building are located is not "particularly easy" for members of the public.

    
    

24. The corporation has never had an employee since its formation. At one time, an elderly individual, Roy Cammeron, spent several hours per day for almost a year manning the booth. Despite Dr. Patel's suggestion to the contrary, /2 it may be reasonably inferred from the evidence that Cammeron was an employee of the motel since the building key was kept at the motel and Cammeron was required to pick up and return the key after each visit to the building, he was supervised by the motel's manager, Victor J. Patel, who monitored Cammeron's activities, and Cammeron maintained constant communications with Victor by walkie-talkie. Also, Victor stated that one of Cammeron's duties was to hand out motel brochures. Besides Cammeron, Bounds contended that on undisclosed occasions he visited the building "usually" twice a week for unspecified purposes. However, he conceded that business on behalf of the corporation is conducted out of his home.

    
    

25. At hearing, Dr. Patel denied that he has any ownership interest in the Roadmaster Inn which is located across the street from the corporation's sign. However, the corporation which owns the motel and leases the same to JMC uses the same address in Hoffman Estates, Illinois as does Dr. Patel. Dr. Patel testified that he participated on behalf of Shree Realty, Inc. in its negotiations with JMC for the lease of the property in 1990 and for a promissory note later executed by two JMC principals in favor of Shree Realty on November 27,1991. These considerations and further testimony given by Dr. Patel (see, for example, page 119 of transcript) support a finding that Dr. Patel either owns or exercises control over the motel.

    
    

26. The land on which the sign and building are located is actually owned by Willie and Martha Butler who reside in Jennings. On July 22, 1988, Victor L. Patel and the Butlers entered into a lease agreement whereby Victor L. Patel leased the property and was granted an access easement for a period of twenty years. /3 The lease authorized Victor to construct a sign. The following day, Victor leased for a period of 48 months his interest in the land and easement to his uncle, who then furnished Victor with $80,000 to construct the sign and small building a short time later. By an undated and unwitnessed typed addendum to the lease, but presumably after July 3, 1990, Dr. Patel purportedly assigned his rights in the lease to ROADMASTER.

    
    

27. According to Bruce Haydon, who represented he is president of JMC, that entity has no proprietary interest in the sign. However, under the terms of its lease with Shree Realty, Inc., JMC is obligated to pay the electric bill for the illuminated sign and the monthly lease payments owed the Butlers under the real property lease originally executed by the Butlers and Victor Patel in July 1988. Although the lease was not offered into evidence, these terms were conformed by Dr. Patel. The corporation does not directly receive the JMC

    payments. However, even though there is no formal agreement between JMC and the corporation, by making these payments, JMC effectively relieves the corporation (as the leaseholder) of the responsibility of paying the sign's electric bill and the cost of the easement to its premises. The lease provides further that if the sign is removed as a result of a proceeding such as this, there-will be no reduction in the amount of lease payments owed by JWC. At hearing, Haydon also contended that Dr. Patel orally agreed that if the motel acquires an Econo Lodge franchise, as it now plans to do, and changes its name from Roadmaster Inn to Econo Lodge, Dr. Patel will change the copy on the sign to "Econo Lodge".

    Dr. Patel denied this assertion. It should be noted that Dr. Patel (presumably on behalf of Shree Realty, Inc.) is now embroiled with Haydon and JMC in a "major" lawsuit over a substantial amount of money.

    
    

28. Before erecting the sign, Dr. Patel spoke with Bowden, the DEPARTMENT sign inspector. Bowden advised him that there must be a business conducted on the premises where the sign was erected in order for the sign to be legal. However, Bowden would not commit this advice to writing, and he told Dr. Patel that the DEPARTMENT would have to "evaluate" the matter once the sign was erected in order to see if it was legal. Thus, there were no representations by the DEPARTMENT to ROADMASTER regarding the type of activities necessary for ROADMASTER to obtain an exemption, there was no later change in position by the DEPARTMENT, and therefore ROADMASTER could not have relied on such representations to its detriment.

    
    

29. Based on the foregoing matters, it is concluded that there were no meaningful business activities conducted by the corporation on the premises where the sign is located either on or before June 19, 1991, when the notice to show cause was issued, or from that time forward to the date of hearing. To the extent any activities have been conducted on behalf of the corporation, these have been conducted at such places as Ocala, Florida, and Des Plaines, Illinois. The remaining portion of this Finding of Fact is deleted as being a legal conclusion and an inaccurate interpretation of section 479.16(1). See discussion under Exception No. 11 and Conclusion of Law No. 3.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to section 120.57(1), Florida Statutes (1991).

   
   

2. As the party seeking to remove ROADMASTER's sign, DEPARTMENT is obligated to prove by the preponderance of the evidence that the sign is illegally erected. Having presented evidence through a stipulation to show that the structure is a sign, no permit tag was affixed to the sign, and it is located within 660 feet of an interstate highway, the burden then shifted to ROADMASTER to overcome the presumption of illegality and to show that it was entitled to an exemption. Henderson Sign Service v. Department of Transportation, 390 So.2d 159 (Fla. 1st DCA 1980). As such, ROADMASTER's motion to dismiss this proceeding on the ground the DEPARTMENT failed to present a prima facie case was properly denied.

   
   

3. The following statutes govern this controversy. First, section 479.07(1), Florida Statues, provides that:

   
   

   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 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.

   
   

   Thus, unless a person qualifies for an exemption under section 479.16, Florida Statutes, he may not erect and maintain a sign on any portion of the interstate highway system without first obtaining a permit. Section 479.16(1) provides that the following type of sign is exempt from the permitting requirements of Chapter 479:

   
   

   1. Signs erected on the premises of an establishment, which signs consist 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

      meet the minimum requirements of the Southern Building Code. 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.

      
      

      Although not a model of clarity, the statute basically provides that a sign erected on the premises of an establishment must relate to the activities being conducted on the premises. Finally, subsection 479.01(13), Florida Statutes, defines the term "premises" as follows:

      
      

      "Premises" means an area of land occupied by the buildings or other physical uses which

      are an integral part of the activity conducted upon the land and such open spaces as are arranged and designed to be used in conjunction with that activity.

      
      

      Hence, in order to qualify for an exemption under section 479.16(1), a sign must be located on land or property that is an integral part of the activity conducted upon the land. It is also necessary that the establishment referred to in section 479.16(1) be an ongoing business at least in the sense of a minimal level of meaningful activity customary for that particular kind of business such that the business establishment exists in substance rather than merely in form.

      
      

4. ROADMASTER's closing argument and proposed recommended order appear to raise three broad contentions as to why it is entitled to an exemption. In brief, it first contends that on June 19, 1991, when the notice to show cause was issued, there was corporate activity on the premises. Second, it asserts that because of certain representations made by a DEPARTMENT inspector, the DEPARTMENT is now equitably estopped from removing the sign. Finally, it relies upon the rationale set forth in Harrison v. Department of Transportation, 349

   So.2d 720 (Fla. 1st DCA 1977) for the proposition that evidence to show that the sign owner intends to develop the business in the future is sufficient to show entitlement to an exemption. These contentions will be addressed separately.

   
   

5. The more persuasive and credible evidence supports a conclusion that there were no meaningful or legitimate business activities being conducted on the premises where the sign is located either on or before June 19, 1991, when the notice to show cause was issued, or from that date forward to the date of hearing. The more credible evidence further shows that to the extent any activities may have been conducted on behalf of the corporation, these have been conducted off-premises at such places as Ocala, Florida, and Des Plaines, Illinois. This being so, it is concluded that the sign and message were not erected on the premises of an ongoing establishment. See Response to Exception No. 12 herein.

   
   

6. Next, there is insufficient evidence to support a conclusion that estoppel should lie against the DEPARTMENT so as to preclude removal of the sign. In Tri-State Systems Inc. v. Department of Transportation, 500 So.2d 212, 215-216 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987), the court held that any decision involving the application of equitable estoppel depends upon properly made findings of fact as to each of three elements of estoppel:

   (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. In this case, the evidence shows that there were no representations made by the DEPARTMENT to the corporation prior to the erection of the sign except that a business must be conducted on the premises in order for the sign to be legal. In addition, the DEPARTMENT advised ROADMASTER that it would have to evaluate the matter once the sign was erected. Since there were no representations by the DEPARTMENT as to a material fact that were contrary to later-asserted positions, the argument that the DEPARTMENT is now estopped from removing the sign is deemed to be unavailing.

   
   

7. Next, in Harrison, the court rejected as being unduly restrictive the DEPARTMENT's interpretation of the term "place of business" as it was then defined in subsection 479. 16(1), Florida Statutes (1975). In that case, the DEPARTMENT had denied a request for an exemption under the cited statute on the ground the sign was more than 100 feet from applicant's place of business (a truck stop). In reaching that conclusion, the DEPARTMENT construed the term "place of business" to mean the existing structure on the premises where the applicant's cash register could be found. On appeal, the court held that the sign could be located more than 100 feet from the truck stop and placed within

   100 feet of contiguous property that was cleared, but not yet built, for other parts of applicant's total project (a motel, campground and wastewater treatment plant). /4 ROADMASTER suggests that this case stands for the proposition that if evidence is presented to show that the corporation intends to develop and implement the business in the future, the corporation is entitled to continue using its sign and enjoying an exemption pending the development of the business. Such an interpretation is rejected. Harrison merely rejected as too restrictive, the DEPARTMENT's interpretation of "place of business" for purposes of determining the distance of the sign. Neither the distance requirement nor the term "place of business" is any longer a part of the statute. Hence, Harrison is irrelevant to the current issue. Furthermore, unlike the current case, Harrison did not involve the issue of whether an ongoing business existed somewhere on the premises but rather where that point was relative to the sign. More specifically, in Harrison, the sign owner already had an ongoing, viable business enterprise (truck stop) on the premises and intended to place his sign

   on contiguous property where contracts had been executed and land cleared for the purpose of constructing a motel, campground and sewage treatment plant as a part of the same business. Here, the corporation has never had any meaningful business activities on the questioned premises since the corporation was formed almost two years ago. Indeed, the more persuasive evidence indicates that what little activity occurred on the premises before the issuance of the notice to show cause was to promote the motel that sits across the street. Accordingly, it is concluded that the rationale in Harrison does not support ROADMASTER's entitlement to an exemption.

   
   

8. Insofar as ROADMASTER is using the sign to advertise the brand name or trade name of "Roadmaster Inn", then such service must be the principal activity of the establishment. Because there is no such activity at the establishment, the sign is not exempt under section 479.16(1).

   
   

9. Finally, in addition to the foregoing reasons, it is noted that subsection 479. 16(1) provides that "if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection." The record reflects, and ROADMASTER concedes, that the current motel lessee (JMC) is required to pay Shree Realty, Inc., the cost of the monthly electric bill for illuminating the sign and the cost of the easement to the premises where the sign is located. Since the corporation has a leaseholder interest in the easement which provides access to its premises and ostensibly benefits from the sign's message, it logically should be responsible for the payment of these two obligations. Therefore, JMC's payments effectively relieve the corporation (and Dr. Patel) of that obligation and constitute "rent" within the meaning of the statute. As such, the sign cannot be deemed to be exempt under this subsection.

   
   

10. In summary, there is insufficient evidence to show that ROADMASTER is entitled to an exemption for its sign. Similarly, the DEPARTMENT has shown that the sign is illegally erected. This being so, ROADMASTER's request for an exemption from the permit requirements of Chapter 479 is denied, and the sign should be removed by ROADMASTER in accordance with section 479.105(1). If ROADMASTER does not timely remove the sign, the DEPARTMENT will do so pursuant to section 479.105(1), Florida Statutes, and the cost of removing the sign, whether by the DEPARTMENT or an independent contractor, is assessed against the owner of the sign as provided in section 479.105(3).

ORDER

Based on the foregoing findings of fact and conclusions of law, it is,

ORDERED that ROADMASTER's request for an exemption from the permitting requirements of Chapter 479 is denied. ROADMASTER's sign located at State Road

143 and I-75 in Jennings, Florida shall be removed in accordance with this order and section 479.105, Florida Statutes. Should ROADMASTER fail to remove the sign within the time frame set out in section 479.105, any costs incurred by the DEPARTMENT for removal of the sign are assessed against ROADMASTER pursuant to section 479.105(3), Florida Statutes.

DONE AND ORDERED this 1st day of June, 1992, in Tallahassee, Leon County, Florida.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

ENDNOTES

1/ Apparently, there are two persons with the name Victor J. Patel who have some involvement in this proceeding. One is Dr. Patel's nephew while the other person, who testified in this cause, is the former manager of the Best Western motel. The latter person's relationship, if any, to Dr. Patel is unknown.

Unfortunately, the record is less than clear on this matter.

/2 Doctor Patel testified that he paid Cammeron's salary on behalf of the corporation through a separate property management corporation located in Illinois, thus suggesting Cammeron was an employee of the corporation.

Conversely, Bounds stated that Cammeron was not a corporation employee.

/3 Although the lease agreement reflects that Victor L. Patel was the lessee, Dr. Patel continually referred to the original lessee as "V. J." or Victor J. Patel, his nephew. It is assumed that Victor L. Patel and V. J. are the same person.

/4 Since Harrison, subsection 479.16(1) has been amended to eliminate the requirement that, to be exempt, an "on-premises" sign could not be more than 100 feet from the place of business.

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY PETITIONER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY

(30) DAYS OF RENDITION OF THIS ORDER.

COPIES FURNISHED:

Donald R. Alexander Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Charles G. Gardner Assistant General Counsel

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

Tallahassee, Florida 32399-0458 William J. Haley, Esquire

Nancy Staff Slayden, Esquire P. 0. Box 1029

Lake City, Florida 32056-1029

Dallas Gray Manager

Real Estate and Corridor Management Office Department of Transportation

605 Suwannee Street, M.S. 22

Tallahassee, Florida 32399-0422

Grady Greene District Secretary

Department of Transportation 1901 South Marion Street Lake City, Florida 32055

Tom Brown

District 2 Outdoor Advertising Administrator Department of Transportation

Post Office Box 1089

Lake City, Florida 32056-1089

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

FLORIDA ROADMASTER INN NOT FINAL UNTIL TIME EXPIRES TO SERVICES CORPORATION, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

CASE NO. 92-2137

vs. DOAH CASE NO. 91-4785T

DEPARTMENT OF TRANSPORTATION,

Appellee.

/ Opinion filed July 1, 1993.

An appeal from a final order of the Department of Transportation.

Nancy Staff Slayden and William J. Haley of Brannon, Brown, Haley, Robinson & Cole, P.A., Lake City, for Appellant.

Thornton J. Williams, General Counsel; Gregory G. Costas, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

BOOTH, MINER and ALLEN, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Ben G. Watts, Secretary

WHEREAS, in that certain cause filed in this Court styled: Florida Department of Transportation

DEPARTMENT OF TRANSPORTATION

v. Case No. 92-2137

Your Case No. 91-4758T

FLORIDA ROADMASTER INN SERVICES CORPORATION

The attached opinion was rendered on July 1, 1993.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 19th day of July, 1993.

Clerk, District Court of Appeal of Florida,

First District

Docket for Case No: 91-004785

Orders for Case No: 91-004785