Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact In June, 1976, Dorothy Deedrick obtained a Certificate of Registration from the Florida State Board of Cosmetology to operate a cosmetology salon under the name "Hair Contempo" at 2926 North State Road 7, Margate, Florida (Exhibit 5). She also obtained an occupational license from Broward County to operate this salon (Exhibit 4). She has continuously operated a salon under the name "Hair Contempo" in Margate for the past five years. For the past two years this salon has been located at 2722 North State Road 7, Margate, Florida. In June and July, 1976, Ms. Deedrick complied with the "fictitious name" statute and published for four successive weeks in the Fort Lauderdale News a notice that she was operating under the fictitious name of "Hair Contempo." In January, 1981, David Aaronson and Luba Aaronson purchased a beauty salon in Margate doing business under the name "Ultissima." After learning that Ms. Deedrick's "Hair Contempo" was not incorporated, they formed a corporation called "Hair Contempo, Inc.," and in March, 1981, applied for a corporate charter. Since there was no corporation registered with the Secretary of State under that name, Charter No. F22428 was issued, effective 6 March 1981, to the Aaronsons for the name, "Hair Contempo, Inc." In the meantime, Ms. Deedrick learned Aaronson was attempting to take the corporate name "Hair Contempo, Inc.," and she called the Secretary of State, Division of Corporations, to reserve the name. When told that "Hair Contempo, Inc." was still available but she could reserve the name, Ms. Deedrick had Articles of Incorporation prepared for a corporation to be called "Hair Contempo, Inc." She then flew to Tallahassee to file the Articles of Incorporation and obtain a charter. On 15 March 1981, she was issued Charter No. F22352 for the corporation, Hair Contempo, Inc. The beauty salon which has operated under the name "Hair Contempo" since 1976 has approximately one thousand regular customers. During this period numerous advertisements have been placed in the local newspaper by Hair Contempo, thereby giving it recognition in the area. The beauty salon, "Ultissima," is located in Margate, some ten miles from the location of Ms. Deedrick's salon. The main sign on the salon reads "Ultissima" but, shortly after obtaining his corporation charter, Aaronson placed a sign in the window of the salon reading "Hair Contempo, Inc."
Recommendation From the evidence presented, it is clear that by filing for the corporate name of "Hair Contempo, Inc.," Respondent intended to defraud Petitioner of the good will and public awareness that had been acquired during the past five years of operations. Accordingly, the application of Aaronson for a corporate charter to be issued to "Hair Contempo, Inc." was not made in good faith and should be revoked. It is, therefore, RECOMMENDED that the charter of "Hair Contempo, Inc.," Charter No. 22428, be revoked. Entered this 21st day of July, 1981. K. N. Ayers Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1981. COPIES FURNISHED: Steven Squire, Esquire 500 Northeast Third Avenue Fort Lauderdale, Florida 33065 Mayer Gattegno, Esquire Post Office Drawer 8310 Coral Springs, Florida 33065 William J. Gladwin, Jr., Esquire Assistant General Counsel Secretary of State The Capitol Tallahassee, Florida 32301
Findings Of Fact On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN". On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.
Findings Of Fact A sign advertising "Kapok Tree" in Daytona Business Park was permitted by the Department of Transportation (Department) at the intersection of Ventress Boulevard and U.S. Highway 92 (hereinafter referred to as the Kapok Tree sign). Lamar-East Florida Outdoor Advertising (Lamar) applied for an outdoor advertising permit for a sign to be located at Bill's Fruit Stand, 380 feet east from the Kapok Tree sign. The Department processed the Lamar application and issued a permit for said sign, although the Lamar sign was within the proscribed distance (500 feet) of the Kapok Tree sign. The Department conducted an on-site inspection, and the inspector failed to notice the Kapok Tree sign. The Department would not have issued the Lamar permit had the Kapok Tree sign been noted. The Kapok Tree sign had its permits displayed. Thereafter, Don Bell and Company (Bell) applied for an outdoor advertising permit for a sign located approximately 30 feet from the intersection of Bayless Avenue and U.S. Highway 92, 480 feet from the Lamar sign location, and 810 feet from the Kapok Tree sign. The Department denied Bell's application because that sign location was less than 500 feet from the Lamar sign location. Neither Lamar nor Bell have constructed signs at the subject locations for which they have applied for permits, although lease payments have been made by both Lamar and Bell. Both the Kapok Tree sign and Lamar have current permits, and Bell challenges the validity of the Lamar permit. But for its distance from the Lamar sign site, the Department would approve the Bell application. All parties stipulate that the Lamar notarized and certified application recites there is no sign within 500 feet of its site, when in fact the Kapok Tree sign was and is 380 feet from Lamar's site. Administration of outdoor advertising is dependent upon the representations made by an applicant in its application and the verification of said data by on-site inspection by the Department's inspector in issuing outdoor advertising permits. The Kapok Tree sign is not an on-premises sign.
Recommendation Having found that there are no valid grounds for denial, it is recommended that the Petitioner's application for an outdoor advertising permit be approved. DONE and RECOMMENDED this 22nd day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Ted Doran, Esquire 100 Seabreeze Boulevard, Suite 130 Post Office Box 2134 Daytona Beach, Florida 32015 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Edward M. Keating, Manager Lamar-East Florida Outdoor Advertising 2801 South Ridgewood Avenue South Daytona, Florida 32019 Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
The Issue Are the four notices of violation against Respondents valid, and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On or about September 21, 2000, DOT became aware that two trucks bearing written material were parked adjacent to DOT's right-of-way on the west side of Interstate 95 (I-95) in St. Johns County in such a manner that the written material was visible from the main-traveled way of I-95. DOT issued four Notices of Violation against the two trucks. Notice of Violation number 10B TS 2000 539 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.015 miles north of SR 207, at milepost 15.823. This violation notice became DOAH Case No. 00-4188T. Notice of Violation number 10B TS 2000 540 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.041 miles north of SR 207, at milepost 15.849. This violation notice became DOAH Case No. 00-4189T. Notice of Violation number 10B BB 2000 539 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.015 miles north of SR 207. This violation notice became DOAH Case No. 00-4423T. Notice of Violation number 10B BB 2000 540 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.041 miles north of SR 207. This violation notice became DOAH Case No. 00-4424T. All of the foregoing notices alleged that the trucks are in violation of Chapter 479, Florida Statutes, in that they are unpermitted signs. On October 24, 2000, DOT issued a letter to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., advising it that the trucks which were issued the above- referenced notices of violation had been moved temporarily out of view and then returned to visibility at each other's previous milepost location. The letter advised that notwithstanding the movement of the trucks within their general location, the trucks remained illegal signs pursuant to Chapter 479, Florida Statutes. I-95 is part of the Interstate Highway System. The two trucks are located at times within 660 feet of the nearest edge of the right-of-way of I-95. The trucks can be seen without visual aid by motorists of normal visual acuity traveling on I-95. Admitted Fact Four of the parties' prehearing stipulation was that at the time the notices of violation were issued, the trucks displayed the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." However, their Admitted Fact Five, incorporating photographs, and other photographs in evidence reveal that one truck had the foregoing display without the slashes and one truck juxtaposed the phrases "Great Food" and "Adult Toys," also without the slashes. The trucks were located within 15 feet of the right-of-way fence and were parked on raised mounds of dirt, elevating them above the surrounding terrain. Immediately adjacent to the trucks were light fixtures with halogen lights aimed at the sides of the trucks. If electricity had been available, the lights could have illuminated the vehicles. The trucks were intentionally placed at their locations. As of January 5, 2001, additional verbiage was added to the trucks which states, "Hunt & Fish Camp." As of the March 7, 2001, date of hearing, the trucks still contained this additional verbiage. On both trucks, the letters are all capitalized; the size of the letters and the paint colors used call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, relatively inconspicuous, and the words, "hunt & fish camp," follow, vertical to the rest of the verbiage. There are no addresses, telephone numbers, arrows, or other identifying information. Respondent Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of the corporation, which will hereafter be referred to as "Exit 94, Inc." Exit 94, Inc., owns, insures, and maintains the two trucks which are the subject of this proceeding. Exit 94, Inc., likewise owns the real property on which the trucks are located, which parcel consists of approximately 11 acres situated between I-95 exits 94 and 95. Exit 94, Inc., does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94, Inc., is developing a hunting and fishing camp at the property it owns, the property where its trucks were cited by DOT, between I-95 exits 94 and 95. Respondent Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica of Florida, Inc., which will hereafter be referred-to as "Café Erotica." The St. Johns Management Company manages the Café Erotica restaurant. Jerry Sullivan also is the President and shareholder of the St. Johns Management Company. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR-207), at the intersection of SR 207 and the exit 94 off-ramps from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94, Inc. The real property owned by Exit 94, Inc., which is the subject of DOT's notices of violation is approximately seven miles from the Café Erotica restaurant. The Café Erotica restaurant currently advertises on its premises and on a billboard at exit 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I- 95 in St. Johns County. Café Erotica no longer rents billboards in these locations. The advertisements of Café Erotica currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. In addition to the real property where its trucks were cited by DOT, which real property Exit 94, Inc., holds by warranty deed, Exit 94, Inc., leases property at the southeast corner of I-95's exit 93, where SR-206 intersects with I-95. At that location, Exit 94, Inc., displays a 14-foot by 25-foot permanent billboard sign reading "Café Erotica/We Dare to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note juxtaposition of part of the corporate name). Below this billboard, on the same leased property, is a smaller sign stating "Fish Camp" with a telephone number (P-11; TR 66-64, 73- 74, 183-184). Exit 94, Inc., claims to maintain an office and a telephone on this leased property. Mr. Sullivan's primary business is that of renting billboards for advertising purposes, which he owns. He has advertised on leased signs and has knowledge of DOT's sign permit requirements. At one time, Mr. Sullivan intended to place a billboard on the property owned by Exit 94, Inc. He has not done so. Neither Café Erotica nor Exit 94, Inc., has applied to DOT for sign permits for the subject trucks, nor paid any sign permit fees for them. No sign permits have been issued to any entity for the subject trucks. When the Notices of Violation were issued, DOT inspectors did not enter on the real property owned by Exit 94, Inc., or pull any business licenses for the property. They viewed the trucks from I-95. No improvements were visible from I-95. DOT did not undertake any investigation to determine the owner(s) of the subject trucks or subject real property. Café Erotica does not own any interest in the subject trucks or real property, and no citizen testified that the trucks had caused him/her to patronize the Café Erotica. DOT witnesses acknowledged that the Notices of Violation issued to Café Erotica were essentially issued in error because DOT did not know the identity of the owner of the subject trucks and real property. Upon discovering that Café Erotica did not own any interest in the subject trucks or real property, DOT made no effort to dismiss the violations against Café Erotica. Jerry Sullivan has decision-making authority for both Respondents as a corporate officer of both corporations. Jerry Sullivan makes management decisions concerning Café Erotica, including whether, and how, to advertise. Jerry Sullivan has directed all activity on the Exit 94, Inc., property. He anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Ninety percent of the time, the subject trucks are parked on the subject property. However, from time to time, the trucks, one of which was burned out and one of which has a "for sale" sign painted on its windshield, are driven off the Exit 94, Inc., property to haul equipment and corn to the subject property, for "truck maintenance," and for incidental uses in connection with Exit 94, Inc., and Mr. Sullivan's other business entities, including Café Erotica. On some of these occasions, the trucks are parked in the parking lot of the Café Erotica restaurant. The trucks are used off the Exit 94, Inc., property only two or three times per month. Except when under repair, they can be driven on the roads and highways. Exit 94, Inc., paid approximately $35,000 for the subject property on or about April 9, 1999, well before the notices of violation. Eight months prior to hearing (approximately three months before the notices of violation), Exit 94, Inc. dug a pond in a naturally low spot and/or a natural basin where Mr. Sullivan believed a pond originally had been on the subject property. A solar panel pump was installed to put water into the excavation because getting electricity run to the property was prohibitively expensive. Inspection of the subject property by DOT personnel only occurred about two-and-one-half weeks before the disputed- fact hearing. At that time, the solar pump used to fill the pond with water was not working well, so that the possibility of fish living in the rather shallow pond was highly unlikely. The pond was not stocked with fish. The property was not stocked with game animals. There was also one very ramshackle deer blind on the property and a permanent metal, utility pole had been erected to support another deer blind. There were no utilities, restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. This situation was memorialized by photographs in evidence. The Exit 94, Inc., property has only one entrance which is not directly accessible from a public roadway. To reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at exit 94, where Café Erotica is located, and proceeds to a private dirt road created and owned by Georgia-Pacific timber company, and then drives approximately one mile along that dirt road over the timber company's land. Thousands of acres of scrub pine belonging to the timber company surround Exit 94, Inc.'s property. Entrance to the timber company land is through a fence/gate. The timber company gate is "posted," warning that hunting is not permitted on its land and that violators will be prosecuted. The Exit 94, Inc., property is also "posted," and therefore not open to the general public. There is a "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., Hunt & Fish Camp" sign at its entrance. It cannot be inferred, as urged by DOT, that if a real property owner "posts" its property so the owner may subsequently prosecute trespassers and poachers, the owner also cannot charge a fee to customers, invited guests, or business invitees who hunt or fish on its property with its permission. Travelling as described above, there are approximately nine and one-half miles between exit 94 of I-95 and the Exit 94, Inc., property. There are no signs advertising a "hunt and fish camp" on this stretch of land, but Exit 94, Inc., has its billboard and other sign at Exit 93. (See Finding of Fact 22.) Exit 94, Inc., presented accounts showing it spent over $7,003 maintaining its signs since 1999 and over $12,000 on the subject trucks. Exit 94, Inc., lists addresses and locations other than the subject property as its business address(es) for various purposes. It maintains no office or telephone on the subject property. The only building on the subject property is a very small storage shack, placed there by Exit 94, Inc. The shack is not habitable as overnight lodging. It was designed to hold repair equipment and corn for seeding the pond for waterfowl and seeding the woods for deer. There is no evidence whether this method of luring game from the surrounding area is legal or illegal, but it is certainly feasible, given the location of the subject property. (See Finding of Fact 38.) Russell Market is General Manager for the Café Erotica restaurant. He was directed by Mr. Sullivan to check on Exit 94, Inc.'s, subject property, and he did so once a week and scattered corn for nine months. He saw wild turkeys on the subject property. Bill King is affiliated with Mr. Sullivan's companies. He has not hunted the subject property, but he sighted one of the deer stands. No witness testified to having camped overnight on the subject property. Bill Harry, who is employed by Mr. Sullivan, has hunted the subject property three or four times without success, despite once seeing a deer. Jerry Sullivan killed a deer on the subject property. There is no parking lot on the subject property. Respondents' witnesses testified that the subject trucks are parked on raised mounds of earth because the subject property is swampy. Only several hundred-by-60 feet have been cleared of brush. There is no telephone service to the subject property. If someone dials the telephone number listed for Exit 94, Inc. on its application to be a fish farm (see Finding of Fact 55) which is the same number on its sign at I-95's exit number 93 (see Finding of Fact 22), a recorded message relays the caller to a telephone number for the cell phone Mr. Sullivan carries on his person. No utilities are currently available on the subject property, but the solar pump is in use at the pond. Bill Harry repaired the pond pump a few days after showing DOT personnel around the subject property. (See Finding of Fact 36.) At hearing, he testified that the pond is now filling well with water. When the pond is full, Mr. Sullivan intends to stock it with fish. Exit 94, Inc., holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the County accepted Exit 94, Inc.'s, designation of its business without further inquiry. Exit 94, Inc., has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94, Inc., produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Patricia Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's other business entities, testified that she had drafted all of the invoices, and had prepared the tax returns. She further testified that she maintained Exit 94, Inc.'s corporate financial books in accord with generally accepted accounting principles. The invoices and payments reflect that other business entities controlled by Mr. Sullivan or his family members were billed and paid for use of the Exit 94, Inc., property. Exit 94, Inc., currently operates at a loss, made up as necessary by Mr. Sullivan. No legitimate reason was demonstrated to pierce the corporate veil of any of Mr. Sullivan's corporations. Approximately two weeks before the disputed-fact hearing, Exit 94, Inc., made improvements to the subject property. These included laying out feed corn on the ground, repairing a deer stand so it could support one or more hunters, and repairing the solar pump. See supra. These improvements were memorialized by photographs in evidence. Respondents asserted that DOT has selectively enforced the sign law against them on the basis of many photographs of trucks bearing written material which were admitted in evidence. The trucks typically carry a business name, address and telephone number. Some carried only a business name. DOT rarely issues notices of violations for trucks. Within the last three-and-one-half years, trucks constituted approximately five such notices out of 3500 sign violation notices of all kinds, not just off-premises signs. The notices to these two Respondents constitute four of the five notices. DOT has promulgated no rules or policies specifying the factors to be considered when evaluating whether an operational truck constitutes an "off-premises sign" worthy of a violation notice. In the normal course of business, DOT inspectors determine whether trucks constitute "on-premises signs" on a case-by-case analysis which weighs content of the sign, usage of the truck, location and length of time the truck is in a single location, and whether the sign content advertises the business at the location where the truck is parked, advertises another business, or advertises anything at all. Inspectors have wide discretion in issuing notices of violation. With respect to the majority of Respondents' photographs presented at hearing, DOT representatives gave reasonable explanations why the truck owners had not been notified of violations, usually because the truck was being operated on the highway, was not parked over-long away from the business premises which it named, or was parked on the property of the business to which it belonged or which it named. In one instance, a contractor's truck was not charged with a violation because it was parked at a construction site which also bore a sign proclaiming that the construction work was being done by that contractor. Sometimes the reason a truck had not been cited was because the truck had not been located. DOT does not research which corporations or persons own or operate trucks painted with business names, and apparently, precision in painting a business name on other operable trucks had no effect on DOT's decision to treat other operable trucks as "on-premises signs" so that no notices of violation were issued against them. Similar photographs of trucks which Mr. Sullivan had sent to DOT were personally evaluated by DOT's Assistant Right- of-Way Manager for Operations, but this measure was only in response to the Respondents' allegations of selective enforcement in the instant case. The Assistant Right-of-Way Manager directed DOT district personnel to take either further investigative or regulatory action as she instructed on a case- by-case basis. One truck for "Smiley's" was subsequently issued a violation notice.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
