STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RODGER B. KING, d/b/a )

BAYSHORE INN, )

)

Petitioner, )

)

vs. ) Case No. 97-1988T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on July 8, 1997.

APPEARANCES

For Petitioner: Joan King

Rodger B. King Bayshore Inn

3512 U.S. 41 North

Palmetto, Florida 34221

For Respondent: Andrea V. Nelson

Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue is whether Petitioner’s motel is entitled to designation on a logo sign located at an exit on Interstate 75.

PRELIMINARY STATEMENT

By letter dated March 5, 1997, Respondent denied Petitioner’s application for participation in the Interstate logo sign program. The letter explains that Rule 14-85.004(10)(a)5 requires eligible businesses to be located on, or visible from, the crossroad at which the logo sign is located.

At the hearing, Petitioner called one witness and offered into evidence two exhibits. Respondent called two witnesses and offered into evidence four exhibits. All exhibits were admitted.

The court reporter filed the transcript on July 28, 1997.

FINDINGS OF FACT

1. Petitioner owns and operates a motel known as the Bayshore Inn on U.S. Route 41 in Palmetto, Florida. The Bayshore Inn is not located at an intersection of I-75.

2. From the nearest intersection on I-75, a motorist driving to the Bayshore Inn would travel 3.4 miles west on U.S. Route 301 and 1.7 miles north on U.S. Route 41.

3. The Bayshore Inn is not visible from the intersection of I-75 and U.S. Route 301.

4. Petitioner has not yet sought from Respondent a variance from the legal requirements for participating in the logo sign program.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

6. Section 479.261 authorizes Respondent to establish a logo sign program to provide information to motorists about gas, food, lodging, and camping available at Interstate interchanges. Section 497.261(7) authorizes Respondent to adopt rules governing the qualification and location of logo sign sites and “to provide variances when necessary to serve the interest of the traveling public or when required to ensure equitable treatment of program participants.”

7. Rule 14-85.004(10)(a)5 requires that qualified businesses, other than campgrounds be located on or visible from the Interstate intersection. If a business fails this requirement, it cannot, as a matter of right, receive designation on a logo sign.

8. Petitioner bears the burden of proving its entitlement to participate in the Interstate logo sign program. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

9. Petitioner has failed to show its entitlement to designation on the logo sign at I-75 and U.S. Route 301. At the hearing, Petitioner requested consideration of a request for a

variance, but the request was premature. Petitioner has yet to present its request to Respondent, as Section 120.542(5) requires. At present, Respondent has only denied Petitioner’s request for participation in the program as a matter of right.

RECOMMENDATION

It is

RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request to participate in the Interstate logo sign program, without prejudice to his right to request a variance.

DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997.

COPIES FURNISHED:

Joan King Rodger B. King Bayshore Inn

3512 U.S. 41 North

Palmetto, Florida 34221

Andrea V. Nelson

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Attention: Diedre Grubbs Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001988

Orders for Case No: 97-001988