89-001126 Marion County Home Builders Association vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, May 10, 1989.

Summary: Denial of permit to place a banner over a road controlled by Department Of Transportation. Prior decisions on similar requests do not lead to a different result here.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY HOME BUILDERS , )

)

Petitioner , )

)

vs. ) CASE NO. 89-1126T

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Notice was provided and on April 29, 1989 in Ocala, Florida, a formal

hearing was held in this case. Authority for the conduct of the hearing is set

forth in Section 120.57(1), Florida Statutes. Charles C. Adams heard the case.

This Recommended Order is being entered following a review of the correspondence

of April 24, 1989 by the representative of the Petitioner which argues in favor

of that position, and upon consideration of the proposed recommended order of

the Respondent. The Respondent's suggested fact finding is subordinate to the

facts found in this Recommended Order. The Petitioner's argument letter is not

in the format of proposed fact finding.

APPEARANCES

For Petitioner : J. R. Shoemaker

Executive Officer

Marion County Home Builders Association

409 Northeast 36th Avenue

Ocala, Florida 32670

For Respondent : Vernon L. Whittier, Jr., Esquire

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

ISSUES

The issues presented concern the question of the entitlement of the

Petitioner to the grant of a permit from the Respondent allowing the placement

of a banner over State Road 40, the 900 block of State Road 40, at Silver

Springs Boulevard in Ocala, Florida. See Rule 14-43.001(1)(g), Florida

Administrative Code.

FINDINGS OF FACT

1. On December 22, 1988 Petitioner made application with the Respondent

for a permit to erect a banner across State Road 40 in the 900 block, East

Silver Springs Boulevard in Ocala, Marion County, Florida. The copy to be

placed on that banner would say "18th Annual Marion County Home Builders Assn.

Parade of Homes May 13 thru May 21."

2. After considering this permit application, Peter W. Wright, the

Respondent's administrator for outdoor advertising in his part of the State,

determined to deny the permit. That decision was reached based upon the

interpretation by Mr. Wright that under the terms of Rule 14-43.001(1)(g),

Florida Administrative Code, the permit could not be granted in that the banner

was one of a commercial nature. This decision was reached on November 11, 1988.

3. A further attempt to explain the reason why the Petitioner felt that it

was entitled to this permit was made in the person of its executive officer, J.

W. Shoemaker, by correspondence of January 23, 1989. Mr. Wright, having

examined that correspondence wrote to the Petitioner's executive officer and

advised him that the request was being denied because the banner was deemed to

be commercial in nature. This decision was reached on February 8, 1989 and it

explains the right of the Petitioner to a formal hearing to dispute that choice

of denial. On February 20, 1989, the Respondent received a request for formal

hearing under the terms of Section 120.57, Florida Statutes. The case was then

forwarded to the Division of Administrative Hearings and the final hearing held

on the date identified in this Recommended Order.

4. Marion County Home Builders Association, Inc., Petitioner, is a not-

for-profit corporation incorporated under the Laws of Florida, specifically at

Chapter 617, Florida Statutes. The corporation is for the benefit of home

builders and related industries within its jurisdiction, having in mind mutual

advantage and cooperation and collaboration with all fields related to the

residential building industry within that jurisdiction, for the construction

industry as a whole and to assist the accomplishment of the mutual objectives of

the National Association of Home Builders of the United States and Florida Home

Builders Association.

5. The executive officer for the Petitioner stated further that the

Petitioner had an interest in assisting its members with legislation in Ocala

and Marion County, Florida reference the businesses of its members. Further, it

has as its purpose to advertise to the public the skills and wares of the

members of the association, in particular through the Parade of Homes for which

the banner permit is sought. In that Parade of Homes the association hopes to

show the public what the members of the association are involved with as

business, and to show the homes themselves. The builders of those homes are at

the Parade of Homes show and the public is invited to tour the homes. Not only

are the members of the public touring the homes, but also looking at home

products being shown by members of the association. The public is charged a

nominal fee of $1 to view the homes and in the past, that money has been

contributed to the United Way. On one occasion $1400 was given to the United

Way. It is expected that the $1 fee collected would be given to the United Way

in the 1989 Parade of Homes Show.

6. While persons are looking at the homes in the parade, they may ask the

builders who constructed those homes, questions about the homes and if it is the

desire of the consumer public and the builder to make arrangements for a home

purchase, then that is an acceptable arrangement from the point of view of the

association. Nonetheless, the specific idea which the association has in mind

is to advertise the display of homes and home products. Other activities

concerning the sale of houses or home products is left to the individual members

of the association who have homes and home products in the show.

7. The home builders who are in the association pay dues and constitute

one-third of the membership. Other dues-paying members are suppliers within the

industry and they constitute approximately two-thirds of the membership.

8. Petitioner's Exhibit number 2 is a photograph which shows indicating

the appearance of the banner in question.

9. In 1985, Petitioner had been allowed to place a banner in Ocala at a

time when Mr. Wright was not in the position of granting permission for banner

displays.

10. Within the last year the Respondent has granted permits to such

diverse organizations as the Ocala Civic Theater, the Ocala Shrine Rodeo, the

Florida Blueberry Festival/Ocala Blueberry Festival and the Rotary Club of

Ocala-Silver Springs Charity Barbeque. Copies of these permits may be found as

Petitioner's Exhibits numbered 5-8, admitted into evidence. Mr. Wright made the

decision to grant those permits.

11. Related to the Ocala Civic Theater, Wright spoke to someone within

that organization and was impressed with the fact that it was, in his mind, for

a public purpose. Related to the Ocala Shrine Rodeo, Mr. Wright felt that the

Shrine is a charitable organization and aids burn victims. As to the Florida

Blueberry Festival/Ocala Blueberry Festival, Mr. Wright felt that the majority

of the funds that were collected in this endeavor went to the Chamber of

Commerce to assist in civic and charitable events. In the main, he identified

that his process of assessment was one of asking whether the function to be

advertised by the banner was one in which the primary interest was for charity

as opposed to profiting individuals or companies. Examples of permit requests

that he has turned down as not being acceptable in that they were commercial in

nature would be rock and gem shows, art festivals, sales of equipment for homes

and other types of businesses. He has no recollection of ever having to decide

the question of whether a Parade of Homes banner was an acceptable purpose to

allow the display of a banner across a public roadway, other than the case at

issue.

12. In making decisions about the grant of the permit in the region in

question, Mr. Wright does not require the submission of a corporate charter to

ascertain whether an organization is a for-profit or not-for-profit corporation.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this cause under the terms of Section

120.57(1), Florida Statutes.

14. Section 337.407, Florida Statutes, grants the Respondent the authority

to make decisions about the appropriateness of the placement of signs within the

right-of-way limits of a road such as State Road 40 within Ocala, Marion County,

Florida. To that end, rules may be adopted. Rule 14-43.001(1)(g), Florida

Administrative Code, speaks to the permission for the placement of temporary

banners across the roadway, where it says:

Regulation of Signs, Canopies Over Streets

and Sidewalks.

(1) Conditions under which overhanging

signs or canopies may be placed along and

over the state roads within corporate limits

of municipalities or where curb and gutter

construction exists outside municipalities as

authorized under Section 335.13, Florida

Statutes, are:

* * *

(g) That temporary banners may be allowed

across the roadway under a permit from the

Administrative Services Office of the State

of Florida Department of Transportation. In

no case will permanent signs or banners be

permitted across the roadway nor banners or

signs of a commercial or political nature.

15. In order to gain permission for the right to place the banner in

question Petitioner must offer proof which, by the preponderance of evidence,

demonstrates entitlement to the permit. See Florida Department of

Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

While it is true that the association which requested this permit is a non-

profit organization, and its function is fulfilled when it assists in bringing

the public into the homes on display to examine those home products, and that

the admission fee that is charged by tradition is for charitable purposes, the

principal reason for this show is commercial in nature. It is to assist the

members of the association in furtherance of the sale of homes and home

products. Consequently, the permit should not be granted.

16. None of the prior decisions which were pointed out by the Petitioner

concerning the grants of permits to various agencies would cause a

recommendation of a permit on this occasion as a means of insuring consistency

in the Respondent's decision-making.

RECOMMENDATION

Based upon a consideration of the facts and the conclusions of law reached,

it is

RECOMMENDED:

That a final order be entered which denies the banner permit application.

DONE and ENTERED this 10th day of May, 1989, in Tallahassee, Leon County,

Florida.

___________________________________

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904 )488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of May, 1989.

COPIES FURNISHED:

J. R. Shoemaker, Executive Officer

Marion County Home Builders

Association

409 Northeast 36th Avenue

Ocala, Florida 32670

Vernon L. Whittier, Esquire

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Kaye N. Henderson, Secretary

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0450