STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3420T

)

TIMOTHY PALETTI, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 18, 1995, in Cross City, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Helene S. Mayton

Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

For Respondent: Norm La Coe, Esquire

Postal Box 140 226

Gainesville, Florida 32614-0226 STATEMENT OF THE ISSUE

Whether Respondent's outdoor advertising sign on U.S. 19 in Dixie County is exempt from the permitting requirements of Chapter 479 F.S.

PRELIMINARY STATEMENT

By Notice of Violation dated March 11, 1994, the Florida Department of Transportation (FDOT) notified Respondent that he had illegally erected an outdoor advertising sign without a permit.

Respondent filed a timely request for formal hearing, and the agency referred the case to the Division of Administrative Hearings.

At formal hearing, FDOT presented the oral testimony of Katherine M. Maxwell, Department of Transportation District Two Outdoor Advertising Administrator; Charles William Maloy, Jr., Department of Transportation District Two Outdoor Advertising Inspector; and Richard Corbin. Petitioner had seven of eight exhibits admitted in evidence.

Respondent Timothy Paletti testified on his own behalf. Respondent had nine of ten exhibits admitted in evidence.

The parties' Joint Prehearing Stipulation was admitted as Hearing Officer's Exhibit A. Most of the other exhibits were composites.

Numerous motions were made throughout formal hearing. Oral rulings thereon are reflected in the record, and ruling as to any and all motions which would ultimately decide the case were reserved for disposition within this recommended order.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. On March 11, 1994, FDOT issued Notice of Violation Number CM03114D to Timothy Paletti, d/b/a Suwanee Belle Marina and Restaurant. Mr. Paletti received the notice on March 18, 1994 and timely requested formal hearing.

   
   

2. The sign cited in the notice is a mobile sign located on U.S. Highway 19, two hundred feet north of the Gilchrist County Line, in Dixie County. FDOT has not issued a state outdoor advertising sign permit corresponding to the cited mobile sign to Timothy Paletti d/b/a Suwannee Belle Marina and Restaurant. This particular sign has never been permitted to anyone.

   
   

3. The cited mobile sign is two-sided so that it can be read by traffic approaching from both directions. It sits on a narrow pie-shaped parcel of land on the west side of U.S. Highway 19, on the north side of River Street as River Street enters U.S. Highway 19 from the west. U.S. Highway 19 and River Street form a "T" at that point.

   
   

4. Respondent, in association with Marilou Clark, d/b/a Suwannee River Investment Enterprises, Inc., holds FDOT permits which correspond to outdoor advertising signs located on U.S. Highway 19 (northbound) approximately 100 feet north of Marina Drive.

   
   

5. U.S. Highway 19 in Dixie County is part of the federal-aid primary system.

   
   

6. The cited mobile sign informs the public travelling U.S. Highway 19 about the services offered at, and the location of, Suwannee Belle Marina and Restaurant.

   
   

7. The cited mobile sign is located on property which the county has zoned "environmentally sensitive."

   
   

8. Several properties owned by other parties are located between the cited mobile sign and Suwannee Belle Marina and Restaurant. The intervening properties all about River Street, which runs perpendicular to U.S. Highway 19 and which parallels a canal. The parcel of land upon which Suwannee Belle Marina and Restaurant are located is at the point at which the small canal and River Street reach either a larger canal or the Suwannee River, one block west of U.S. Highway 19. The intervening properties are used by their owners for their own private business or personal uses which have no relation to Suwannee Belle Marina and Restaurant.

9. The cited mobile sign is not an official FDOT traffic directional sign. It has displayed such information as, "Boat Rentals," "Live Bait," and "Suwannee Belle Marina and Restaurant (with an arrow symbol)."

   
   

10. Since at least 1975, FDOT has required state outdoor advertising sign permits for permanently erected signs which were maintained at or near the site upon which Respondent's cited mobile sign is currently located. Those signs were used to advertise the same marina. Richard Corbin d/b/a Yellow Jacket Marina, Inc., held FDOT permits which corresponded to the permanent signs previously maintained at or near the site of Respondent's cited mobile sign until those permits lapsed for non-payment of the annual sign permit renewal fees.

    
    

11. In 1989, Respondent Paletti transacted to purchase the marina from Mr. Corbin. Respondent would not have acquired the marina and restaurant if he had not believed he could simultaneously use the roadside parcel containing the signs. He used all the signs to advertise Suwannee Belle Marina and Restaurant from 1989 onward.

    
    

12. Respondent Paletti and Mr. Corbin have been involved in a series of lawsuits ever since 1989. Respondent successfully operated the marina and restaurant from 1989 through sometime in 1991 or 1992. The restaurant was first leased and then closed due to the amount of Respondent's time, energy, and money involved in these lawsuits. In 1993, the restaurant was only used for limited parties. The use of the primary parcel in 1994 is not clear on the record.

    
    

13. Without becoming embroiled in minutiae, it is sufficient to find here that Mr. Corbin did not pay his annual FDOT sign permit renewal fees and would not agree to transfer his permits to Respondent, so Respondent paid the fees for awhile. FDOT refused to transfer the old sign permits to him. Respondent stopped paying the sign permit fees. After lapse of the original permits, the previously permitted permanent signs were removed by FDOT. The never-permitted mobile sign was not removed by FDOT. The previously permitted permanent signs were not in place and currently permitted as of FDOT's March 11, 1994 notice of violation for Respondent's mobile sign. Respondent had not timely requested formal hearing with regard to any of the agency actions culminating in the removal of the permanent signs, and as of March 11, 1994, his request time had long passed.

    
    

14. James R. Clendenon owns the pie-shaped parcel upon which Respondent's cited mobile sign is located. It is normally a vacant lot except for the mobile sign. He leases it to Respondent.

    
    

15. Respondent maintained that although the cited mobile sign is located on a parcel which is physically separate from the primary location of the restaurant and marina business, the two parcels function as one business site and neither parcel can function without the other. This position is grounded upon the need to direct potential customers down the one block of River Street to the primary site of the restaurant and marina because the signs affixed to the restaurant and marina are not readily visible from U.S. Highway 19.

    
    

16. River Street sometimes floods. In 1990, it flooded four times and was under water three weeks at a time. Due to flooding in the whole area, Respondent had to pick up guests on the sign site parcel and ferry them down the canal that runs parallel to River Street to the restaurant. During this period,

    Respondent moved his manager's trailer to the sign site parcel and also sold pontoon boats from that location.

    
    

17. FDOT inspectors have visited the site ten times over the last two years and seen nothing on the sign site except the signs.

    
    

18. FDOT contended that the "environmentally sensitive" nature of the sign site precludes its use for any commercial purpose, but FDOT's exhibit admitted to support this premise actually provides for special exceptions under the land use plan and zoning statutes for water-dependent commercial uses such as marinas and limited campgrounds. By itself, the sign site could not be used for either purpose.

    
    

19. Respondent conceded that the marina and restaurant site can still be used if the sign on the non-contiguous parcel is removed, but he maintained that then his primary site would not be "functional." Based upon his vivid testimony that to remove the sign constitutes "a dagger in the heart of my business," it is found that by "nonfunctional" he means, "financially disastrous." His testimony did not explore any uses other than a restaurant and marina for which the primary location could be used.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

    
    

21. The cited mobile sign meets the definition of "sign" contained in Section 479.01(17) F.S. [1994], formerly Section 479.01(15) F.S.

    
    

22. Section 479.16(1) F.S. provides that a permit is not required for signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identifies the principal or accessory product or services.

23. Section 479.01(5) F.S. defines "premises" as follows: "Premises" means all the land areas under

    ownership or lease arrangement to the sign owner which are contiguous to the business conducted on the land except for instances where such land is a narrow strip contiguous to the advertised activity or is connected by such narrow strip, the only viable use of

    such land is to erect or maintain an advertising sign.

    
    

24. Section 479.07(1) F.S. provides:

    
    

    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. For purposes of

    this section, "On any portion of the State High- way System; interstate or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.

    
    

25. The cited mobile outdoor advertising sign is not located on or contiguous to the premises of the business establishment it advertises. Therefore, the subject sign does not qualify for an exemption from Chapter 479

    F.S. Since FDOT has not issued a state outdoor advertising permit for it, the sign is illegal, a nuisance, and must be removed.

    
    

26. The cases cited by Respondent stand for the limited legal propositions described. However, one is a local zoning case and the others are eminent domain proceedings, mostly inverse condemnation or severance or business damage claims. None are permitting cases decided under the controlling statute here. Consequently, these cases are not presidentially valuable for the case at hand.

    
    

27. To paraphrase an unpublished Career Service Commission opinion, many results are "awful but lawful." This is one of them.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final

order requiring Respondent to remove the mobile sign which is the subject of its Notice of Violation Number CM031194D within 10 days of the entry of the final order, and instructing agency staff to remove the sign on the eleventh day if Respondent has not previously done so.

RECOMMENDED this 1st day of May, 1995, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 1st day of May, 1995.

APPENDIX TO RECOMMENDED ORDER 94-3420T

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-7, 9-11 Accepted except that cumulative material was not utilized.

8 Covered only as proven in FOF 7, 14, and 18.

Respondent's PFOF: Respondent's proposed order is divided into some sections not normally recognized in such orders or pursuant to Sections 120.57(1) and 120.59(2) F.S. or Chapter 60Q-2 F.A.C. Respondent has also created two segments, labelled "Proposed Findings of Fact A. Review of Evidence" on pg. 4, and "B. Proposed Findings of Fact" on pg. 8.

1. Review of the Evidence

   
   

   The introductory paragraph is rejected as mere argumentation.

   1. Accepted except that unnecessary, subordinate, and/or cumulative material has not been utilized, and legal argumentation has been excluded.

   2. Contrary to Section 120.59(2) F.S., the posthearing order, and Rules 60Q-2.024 and 60Q-2.031 F.A.C., this proposal does not number sentences or paragraphs and runs over three pages long. It is rejected for that reason and because it intermixes legal argumentation and factual proposals. The substance

      not covered in some manner in the recommended order is immaterial or irrelevant, or subordinate, unnecessary and/or cumulative to the facts as found.

      
      

2. Proposed Findings of Fact

None of these proposals contains any citation to the record, and all are rejected for that reason. PFOF 1, 5, 7, and 9 are rejected because, as stated, they are conclusions of law or legal argumentation. All of PFOF 2-4, 6, and 8 have been covered in substance.

COPIES FURNISHED:

Helene A. Mayton Assistant General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399

Norm La Coe, Esquire Postal Box 140 226

Gainesville, Florida 32614-0226

Ben G. Watts, Secretary Attn Diedre Grubbs, M.S. 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

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: 94-003420

Orders for Case No: 94-003420