STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. )

) CASE NO. 91-6566T

) FATHER & SON MOVING & STORAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 24, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Carolyn S. Holifield, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether a sign owned by Respondent and located on the southbound side of I-

95 north of Pembroke Road in Broward County, Florida, violates Chapter 479, Florida Statutes, as alleged in the notice dated August 8, 1991; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner issued a Notice of Violation to Respondent on August 8, 1991. Petitioner determined that a metal trailer located on the southbound side of Interstate 95 ("I-95"), north of Pembroke Road in Broward County, was a sign that was not properly permitted. Petitioner directed that the sign be removed. Respondent denied the violation and requested a formal hearing pursuant to Chapter 120, Florida Statutes.

The matter was referred to the Division of Administrative Hearings on October 11, 1991, for assignment of a hearing officer, and assigned to the undersigned on October 21, 1991. A formal hearing was scheduled for February 24, 1992, pursuant to a Notice of Hearing issued on November 8, 1991.

Prior to the start of the formal hearing, Respondent requested by telephone conversation with the undersigned and Petitioner that the hearing be continued to allow Respondent time to obtain counsel. Petitioner objected to the

continuance, and after hearing arguments from both parties, Respondent's ore tenus motion for continuance was denied on the grounds that Respondent's motion was not timely made and that Respondent had failed to show that an "extreme emergency" existed within the meaning of Florida Administrative Code Rule 22-

1. The formal hearing on the merits then proceeded.

   
   

   Respondent's representative was invited by the undersigned to participate in the hearing by telephone but declined. Pursuant to the request of Respondent's representative, a 30 minute recess was granted to allow Respondent time to telephone its attorney so that the attorney could participate in the hearing by telephone. Within the time allowed for recess, Respondent's representative telephoned and instructed the undersigned to proceed with no appearance by Respondent or its attorney.

   
   

   At the formal hearing, Petitioner presented the testimony of Mr. Mark Johnson, Outdoor Advertisement Inspector for Petitioner. Petitioner offered five exhibits for admission in evidence. Petitioner's Exhibits 1-5 were admitted in evidence without objection. 1/ No evidence was presented on behalf of the Respondent. The hearing was recorded by a court reporter. The transcript of the hearing was filed with the Division of Administrative Hearings on March 3, 1992. Petitioner's proposed recommended order was filed on March 13, 1992. Respondent did not file a proposed recommended order. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes. Chapter 479 regulates outdoor advertising structures along the state highway system.

      
      

   2. Respondent is the owner of a sign located adjacent to the southbound side of Interstate 95 ("I-95") near Pembroke Road in Broward County, Florida. Respondent maintains the sign on the side of the trailer portion of a so-called

      18 wheel tractor-trailer (an "18 wheeler") in a stationary position. No truck or tractor is affixed to the trailer.

      
      

   3. The sign and 18 wheeler were situated on property owned by Air Stern. Air Stern is an air conditioning company.

      
      

   4. Petitioner's Outdoor Advertising Inspector (the "inspector") first observed the sign in August, 1991. The sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary location. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95.

      
      

   5. The advertising message was clearly visible from I- 95. A light facing the sign was affixed to the ground and positioned to illuminate the sign on the side of the 18 wheeler at night. An expired 1990 Florida license plate was affixed to the back of the trailer. Grass had grown up around the tires of the trailer and the trailer had been in its same position for several months.

      
      

   6. The inspector issued a Notice of Violation by physically attaching it to the trailer on August 8, 1991. The inspector determined that the printed advertisement on the trailer's side was an unpermitted sign that violated Section 479.07(1), Florida Statutes. The inspector based his determination upon

      his observation of the trailer on the premises, its position in relation to I- 95, and the type and content of the message printed on the side. Another copy of the Notice of Violation was mailed to Respondent.

      
      

   7. After more than 30 days had elapsed with no action by Respondent, Petitioner had the first sign removed by Sal's Towing on September 23, 1991. The sign was stored at Petitioner's maintenance facility in Ft. Lauderdale, Florida. On November 9, 1991, Respondent paid the towing charge for removal of the sign and then returned the sign to its original location adjacent to I-95 near Pembroke Road in Broward County, Florida. In addition to placing the sign in its original location, Respondent placed a second sign next to the first sign.

      
      

   8. The second sign was substantially similar to the first sign. The second sign consisted of a large advertisement affixed to the side of an 18- wheeler which was placed in a stationary position with no truck or tractor attached. The message in the advertisement consisted of the words "Father & Son Moving & Storage" and the company's telephone numbers in Broward and Dade counties. The advertising message was clearly visible from I-95. A sign permit has not been applied for by Respondent nor issued by the Department for either of the signs located adjacent to I-95.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

      
      

   10. Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of the evidence that Respondent committed the acts alleged in the Notice of Violation and that Petitioner is entitled to the relief requested in this proceeding.

       
       

   11. Section 479.007(1), Florida Statutes, provides:

       
       

       1. 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 of federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in the section.

          
          

   12. Section 479.01(14), Florida Statutes, defines a "sign" 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 . . . designed, intended or used to advertise or inform, any

       part of the advertising message or informative contents of which is visible from any place on the main-traveled way...

       
       

       The message displayed by Respondent on the side of the 18 wheeler is a sign within the meaning of Section 479.01(14). The message displayed contains both the name and the telephone numbers of the advertiser. The trailer is a structure in the form of an outdoor sign or advertising structure used to advertise, and is visible from any place on the main-traveled highway.

       
       

   13. The fact that the trailer is on wheels and may be portable does not preclude it from the statutory definition of a sign in Section 479.01(14), Florida Statutes. The trailer has an expired tag. Grass has grown up around the tires of the trailer and the truck has remained at its present location for several months. A light has been placed in front of the trailer to illuminate the sign at night.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent

shall have ten days from the date of the Final Order to comply with Notice of Violation No. 4-369 by removing the sign or be subject to the cost of removal and imposition of an administrative fine.

DONE and ENTERED this 6th day of April 1992, in Tallahassee, Florida.

DANIEL MANRY

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 6th day of April 1992.

ENDNOTE

1/ Petitioner's Exhibit 1 is a blank form of a Notice Of Violation. Petitioner's Exhibit 2 is a copy of the alleged violations. Petitioner's Exhibit 3 is a composite exhibit consisting of four photographs. Petitioner's Exhibit 4 is a composite exhibit consisting of three photographs. Petitioner's Exhibit 5 is a copy of an invoice from Sal's Towing Service.

APPENDIX

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those

proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Finding 2

3. Accepted in Finding 3

4. Accepted in Finding 4

5. Accepted in Finding 5

6. Accepted in Finding 6

7. Accepted in Finding 8

8. Accepted in Finding 7

9. Rejected as cumulative

10. Accepted in Finding 8

Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Carolyn S. Holifield, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

John Pocaro

3551 Northwest 15th Street Ft. Lauderdale, Florida

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation Haydon Burns Building #562 605 Suwannee Street

Tallahassee, Florida 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. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN 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.

Docket for Case No: 91-006566

Orders for Case No: 91-006566