90-007547 Jimmie`s Firestone Service Center vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, May 15, 1991.

Summary: 16 hour operations required 7 days a week for logo signs. Logo sign ordered down for failing to meet requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMIE'S FIRESTONE SERVICE )

CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7547

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A final hearing in this case was held pursuant to notice on April 8, 1991,

in Tallahassee, Florida, by Stephen F Dean, assigned Hearing Officer of the

Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Mr. Jimmie Ragans, pro se

Route 1, Box 3330

Madison, Florida 32340

FOR RESPONDENT: Charles Gardner, Esquire

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

ISSUES

Whether the Department of Transportation (DOT) properly denied Petitioner

continued participation in the Logo Sign Program.

PRELIMINARY STATEMENT

The DOT was advised in writing by Jimmie's Firestone that their posted

hours of operation had been shortened to less than 16 hours per day, seven days

per week. By letter dated October 31, 1990, the DOT advised Jimmie's Firestone

that to be eligible for the Logo Sign Program, a business had to remain open no

less than 16 hours per day, seven days per week, and that they would be dropped

as participants in the program. The Department's letter also advised Jimmie's

Firestone of the right to a formal administrative hearing, which was requested.

DOT forwarded the case to the Division of Administrative Hearing by letter dated

November 27, 1990. Notice of the formal hearing was provided on December 12,

1990 for January 28, 1991; however, Jimmie's requested a continuance until April

8, 1991 which was granted. The hearing was held on April 8, 1991, pursuant to

amended notice.

Although denominated the Petitioner, Jimmie's Firestone already

participates in the Logo Sign Program, and this hearing is to determine if the

Department is properly seeking to revoke that privilege. Therefore, the burden

of proof and persuasion are upon the DOT. The style has not been changed

because neither party raised the matter before hearing, and it would be

potentially confusing to alter the style at this point in the proceedings.

The DOT requested and received an extension of the time to file its

proposed findings from April 18 until April 30, 1991. The Department timely

filed its proposed findings which were read and considered. The Appendix

attached hereto and by reference incorporated herein states which findings were

adopted and which were rejected and why.

FINDINGS OF FACT

1. The Logo Sign Program is a privilege granted to vendors of lodging,

food, and gasoline in rural areas to advertise on DOT constructed road side

panels their services on interstate highways. The DOT has established rules in

accordance with federal guidelines for permitting businesses to advertise their

services by placing a sign of regulated and uniform size (a logo) on the

Department's roadside panel (mother board).

2. Jimmie's Firestone is located in 1the vicinity of the interchange of 1-

10 and State Road 53, where its logo sign, a red and white Firestone Tire sign,

is attached to the DOT's gasoline mother board. See Jimmie's Late Filed

Exhibit, Aerial Photograph of Interchange of 1-10 and SR 53.

3. Prior to August 20, 1990, Jimmie's Firestone was open not less than 16

hours per day, seven days per week. Because of a downturn in the economy,

Jimmie's altered its hours of operation to 8:00 A.M. to 6:00 P.M., or less than

16 hours per day.

4. Jimmie's continues to provide "on call" road service 24 hours per day

through other gasoline vendors at the intersection; one of which is owned by the

Ragans. "On call" means that Jimmie's Firestone would reopen between 6:00 P.M.

and 8:00 A.M. to provide tire sales and repair and to sell gasoline, if needed.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction of the parties

and subject matter of this dispute; and this order is entered pursuant to

Section 120.57(1), Florida Statutes. Section 14-85.008(2)(a)(2), Florida

Administrative Code, provides in pertinent part as follows:

6. "To be eligible to display a "Gas" logo panel, a business shall 2.

Operate year-round at least 16 hours per day, seven days a week."

7. "Operate" is not defined in the rule, but should be given its commonly-

accepted, everyday meaning. Webster's New World Dictionary, Second College

Edition, defines "operate" as, "to conduct the affairs of a business" or "to be

in action so as to produce an effect." The rules provide that a participant in

the gasoline logo program must provide unleaded gasoline, one or more modern

restrooms, drinkable water, a public telephone, and an on-premise attendant.

8. "Operate" in the context of the rule would mandate the availability of

these services and facilities 16 hours per day, seven days per week. None of

the aforementioned services or facilities are immediately available as required

by the rule when the business is "on call." The rule's intent is stymied when

services and facilities are not immediately available.

9. Jimmie's Firestone does not meet the minimum requirement to participate

in the Department's Logo Sign Program.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

recommended that the permit to participate in the gasoline logo sign program

issued to Jimmie's Firestone be revoked and its logo removed from the

Department's roadside panel.

DONE AND ORDERED this 15th day of May, 1991, in Tallahassee, Leon County,

Florida.

___________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

FILED with the Clerk of the

Division of Administrative Hearings

this 15th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE No. 90-7547

The Petitioner did not file proposed findings of fact.

Respondent's Proposed Findings of Fact 1-5. Adopted.

COPIES FURNISHED:

Mr. Jimmie Ragans

Route 1, Box 3330

Madison, FL 32340

Charles Gardner, Esg.

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, Esq.

General Counsel

Department of Transportation

562 Haydon Burns Building

Tallahassee, FL 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.