00-004188 Department Of Transportation vs. Cafe Erotica Of Florida, Inc., D/B/A Cafe Erotica Status: Closed Recommended Order on Thursday, July 12, 2001.

Summary: Case tracks Sun City Shell Inc. and distinguishes Florida Roadmaster Inn Services to hold trucks operable on the highway are not "signs" when parked on owner`s premises, provided property is under active development as business activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case Nos. 00-4188T

) 00-4189T

CAFE EROTICA OF FLORIDA, INC., ) 00-4423T

d/b/a CAFE EROTICA, and CAFÉ ) 00-4424T

EROTICA/WE DARE TO BARE/ADULT )

TOYS/GREAT FOOD/EXIT 94, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

March 7, 2001, in Gainesville, Florida, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner : Jodi B. Jennings, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0450

For Respondent : Gary S. Edinger, Esquire

305 Northeast First Street

Gainesville, Florida 32601

STATEMENT OF 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?

PRELIMINARY STATEMENT

This consolidated proceeding was initiated by the filing of

requests for a disputed-fact hearing by Respondent Café Erotica

of Florida, Inc., d/b/a Café Erotica and Respondent Café

Erotica/Dare to Bare/Adult Toys/Great Food/Exit 94, Inc.,

pursuant to Section 120.57(1), Florida Statutes, in response to

four Notices of Violation issued by the Florida Department of

Transportation (DOT) for the erection of allegedly illegal

signs. The cases were referred to the Division of

Administrative Hearings sequentially, beginning on or about

October 10, 2000. The four cases were consolidated on

November 17, 2000.

At the disputed-fact hearing, DOT presented the oral

testimony of Tom Simmons, Donald Cerlanek, and Juanice Hagan.

Joint Exhibits 1 through 5 and Petitioner's Exhibits 6 through

12, 15 through 18, and 20 through 26, were admitted in evidence.

Petitioner's Exhibits 13, 14 and 19 were withdrawn.

Café Erotica of Florida, Inc., d/b/a Café Erotica and Café

Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc.,

presented the oral testimony of Jerry Sullivan, William Harry,

Russell Market, and Patricia Doorbar. Respondent's Exhibits 1a

through 1cc and 2 through 16 were admitted in evidence.

At the close of DOT's case-in-chief, Respondent Café

Erotica of Florida, Inc. d/b/a Café Erotica moved for its

dismissal as a party on the grounds that no evidence had been

presented which would make it a proper party hereto, and

Respondent Café Erotica/We Dare to Bare/Adult Toys/Great

Food/Exit 94, Inc., moved to dismiss on the basis that no prima

facie case against it had been proven. These motions were

denied, subject to revisitation in the Conclusions of Law,

infra .

A Transcript was filed with the Division on May 2, 2001.

The parties' respective timely-filed Proposed Recommended Orders

have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. All of the foregoing notices alleged that the trucks

are in violation of Chapter 479, Florida Statutes, in that they

are unpermitted signs.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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."

13. Exit 94, Inc., owns, insures, and maintains the two

trucks which are the subject of this proceeding.

14. 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.

15. 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.

16. 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."

17. The St. Johns Management Company manages the Café

Erotica restaurant. Jerry Sullivan also is the President and

shareholder of the St. Johns Management Company.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. At one time, Mr. Sullivan intended to place a

billboard on the property owned by Exit 94, Inc. He has not

done so.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. Jerry Sullivan has decision-making authority for both

Respondents as a corporate officer of both corporations.

31. Jerry Sullivan makes management decisions concerning

Café Erotica, including whether, and how, to advertise.

32. 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.

33. 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.

34. Exit 94, Inc., paid approximately $35,000 for the

subject property on or about April 9, 1999, well before the

notices of violation.

35. 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.

36. 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.

37. 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.

38. Thousands of acres of scrub pine belonging to the

timber company surround Exit 94, Inc.'s property.

39. 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.

40. 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.

41. 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.

avelling 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.)

43. Exit 94, Inc., presented accounts showing it spent

over $7,003 maintaining its signs since 1999 and over $12,000 on

the subject trucks.

44. 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.)

45. 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.

46. Bill King is affiliated with Mr. Sullivan's companies.

He has not hunted the subject property, but he sighted one of

the deer stands.

47. No witness testified to having camped overnight on the

subject property.

48. Bill Harry, who is employed by Mr. Sullivan, has

hunted the subject property three or four times without success,

despite once seeing a deer.

49. Jerry Sullivan killed a deer on the subject property.

50. 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.

51. 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.

52. 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.

53. When the pond is full, Mr. Sullivan intends to stock

it with fish.

54. 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.

55. Exit 94, Inc., has applied for a "fish farm" license

from the Florida Game and Freshwater Fish Commission.

56. 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.

57. 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.

58. Exit 94, Inc., currently operates at a loss, made up

as necessary by Mr. Sullivan.

59. No legitimate reason was demonstrated to pierce the

corporate veil of any of Mr. Sullivan's corporations.

60. 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.

61. 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.

62. 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.

63. 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.

64. 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.

65. 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.

66. 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.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1) and Chapter 479, Part III, Florida

Statutes.

68. DOT contends that the trucks cited constitute "signs"

as defined in Chapter 479, Florida Statutes; that they do not

advertise the business of Exit 94, Inc., and that, therefore,

the trucks cannot be "on-premises" signs, but are, in fact,

"off-premises" advertisements for the Café Erotica, and so must

be permitted by DOT, for a fee, or removed by the sign owner.

Respondents maintained that the subject trucks are used for

transport and storage of materials related to Exit 94, Inc.'s,

business on the subject property which Exit 94, Inc., owns and

is developing as a fishing and hunting camp.

69. The remedy sought in this case is not precisely a

"penal" one as contemplated by the recent case of Chancellor

Media Whiteco Outdoor v. Department of Transportation , 2001 W.L.

201517, 26 Fla. L. Weekly D627 (Fla. 5th DCA March 2, 2001),

because there is no sign permit to revoke. However, the effect

is the same, in that DOT seeks to deny Respondent Exit 94, Inc.,

the right to use its own personal property (the subject trucks)

on its own real property. Accordingly, this case involves a

valuable economic property right, and DOT should be held to the

higher burden of proof established in that case of "clear and

convincing evidence." However, even if DOT merely has the duty

of going forward and proving each violation by a preponderance

of the evidence, it cannot prevail. See Florida Department of

Transportation v. J.W.C., Co. Inc., and the Department of

Environmental Regulation , 396 So. 2d 778 (Fla. 1st DCA 1981).

70. The motion to dismiss Café Erotica as a party is well-

founded. Respondent Café Erotica of Florida, Inc., d/b/a Café

Erotica, may have incidentally benefited by the words on the

trucks owned by Respondent Café Erotica/We Dare to Bare/Adult

Toys/Great Food/Exit 94, Inc., but Café Erotica does not own the

subject real property or trucks, and therefore, it is not a

proper party Respondent. DOAH Case Nos. 00-4188T and 00-4189T

should be dismissed.

71. Section 479.01(17), Florida Statutes, provides, in

pertinent part,

"Sign" means any combination of structure

and message in the form of an outdoor

advertising sign, display, device, figure,

painting, drawing, message, placard, poster,

billboard, advertising structure,

advertisement, logo, symbol, or other form,

whether placed individually or on a V-type,

back-to-back, side-to-side, stacked, or

double-faced display or automatic changeable

facing, designed, intended, or used to

advertise or inform, any part of the

advertising message or informative contents

of which is visible from any place on the

main-traveled way.

72. Section 479.01(6), Florida Statutes, provides,

"Erect" means to construct, build, raise,

assemble, place, affix, attach, create,

paint, draw, or in any other way bring into

being or establish; but it does not include

any of the foregoing activities when

performed as an incident to the change of

advertising message or customary maintenance

or repair of a sign.

73. Section 479.07(1), Florida Statutes, provides,

Except as provided in Sections 479.105(1)(e)

and 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 Highway System or on any portion

of the 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.

74. Section 479.01(4), Florida Statutes, defines

"controlled area" to mean "660 feet or less from the nearest

edge of the right-of-way of any portion of the State Highway

System, interstate, or federal-aid primary system. . . ."

75. Section 479.150(1), Florida Statutes, provides,

Any sign which is located adjacent to the

right-of-way of any highway on the State

Highway System outside an incorporated area

or adjacent to the right-of-way on any

portion of the interstate or federal-aid

primary highway system which sign was

erected, operated, or maintained without the

permit required by Section 479.07(1) having

been issued by the department, is declared

to be a public nuisance and a private

nuisance and shall be removed as provided in

this section.

76. A straightforward reading of the statute reveals that

the subject trucks are not signs. They are neither

"structures," nor "erected."

77. Moreover, the instant case is on all fours with Sun

City Shell, Inc. v. Department of Transportation , 626 So. 2d

1097 (Fla. 1st DCA 1993), where the First District Court of

Appeal determined that a parked trailer was not a "sign" under

the foregoing outdoor advertising statute merely because the

trailer was visible from a federally-assisted road. Therein, a

fully-operational 40-foot, over-the-road trailer detached from,

but normally towed by, a truck, and bearing only the truck

owner's name in large, black lettering along the side, with no

other markings such as an arrow, address, or phone number and

primarily used to store equipment for the truck owner's mining

operation on leased real property was held not "designed,

intended, or used to advertise or inform," and thus not a sign.

See Department of Transportation v. Sun City Shell, Inc. , DOAH

Case No. 91-4733T (Recommended Order April 27, 1992), for facts

not fully discussed in the appellate opinion. The trucks herein

are also very different than the single truck in Department of

Transportation v. Sunshine Patio Shops, Inc. , DOAH Case

No. 86-2288T (Recommended Order, December 15, 1986) which truck

was used as a "retail establishment."

78. Herein, if anything, the case is stronger for

Respondent Exit 94, Inc ., because it also owns the land upon

which the trucks are parked, and the trucks are operated

regularly on the highways in furtherance of their owner's

business conducted on the real property. Also, after the

notices of violation, Exit 94, Inc., took steps to minimize any

incidental value of its corporate name or of its trucks to Café

Erotica by painting additional language on the trucks to clearly

identify them as belonging to a "hunt and fish camp."

79. The corporate name of the truck's owner may not make

any logical sense for a hunting and fishing camp as far as DOT

is concerned, and DOT may speculate that it has some incidental

value to Mr. Sullivan's other corporate Respondent in this case,

but denial of use of a duly-registered corporate name is not

DOT's prerogative. A corporation has a right to use the full

corporate name approved by the Department of State. In light of

the corporate books and materials provided by Exit 94, Inc., and

Ms. Doobar's testimony, DOT has been unable to demonstrate

herein any legitimate reason to "pierce the corporate veil" or

to determine that Exit 94, Inc., is a bogus or fraudulent

"front" for something else. Many individuals hold ownership and

managerial interests in more than one corporation and exercise

those interests to the mutual benefit of more than one

corporation while limiting their personal liability. The law

permits this use of a corporate shield. 1

80. Given DOT's pattern of not checking who are the

corporate owners of operable trucks and of not citing operable

trucks as "signs," even where the trucks bear imprecise or

jumbled statements of owners' names, corporate or otherwise, the

absence of slashes on both of Exit 94, Inc.'s, trucks and the

juxtaposition of phrases within the corporate name on one truck

are immaterial, and both of Exit 94, Inc.'s, trucks should be

afforded the protection of the decision in the Shell City Sun,

Inc. , case.

81. Assuming, arguendo , but not ruling, that the corporate

trucks are "signs," an exemption from the permitting

requirements of Section 479.07(1), Florida Statutes, exists for

"on-premises" signs, as defined in Section 479.16(1), Florida

Statutes.

82. Section 479.16(1), Florida Statutes, provides in

pertinent part:

The following signs are exempt from the

requirement that a permit be obtained under

the provisions of this chapter but are

required to comply with the provisions of

Section 479.11(4)-(8):

(1 ) Signs erected on the premises of an

establishment, which signs consist primarily

of the name of the establishment or which

identify the principal or accessory

merchandise, services, activities, or

entertainment sold, produced, manufactured,

or furnished on the premises of the

establishment and which comply with the

lighting restrictions under department rule

adopted pursuant to Section 479.11(5), . . .

83. The burden to establish an exemption falls upon the

party seeking to establish the exemption, in this case, Exit 94,

Inc. See Florida Department of Transportation v. J.W.C. Co.

Inc., and the Department of Environmental Regulation , supra .

84. While DOT witnesses may consider the wild game on the

subject property to be inferior, scarce, or non-existent, may

consider the equipment inferior, and may consider the location

poor, these opinions do not refute Exit 94, Inc.'s evidence

establishing that a pond was dug and a solar panel pump was

installed prior to the notices of violation; that the property

has been legally licensed for a camp; that an application for a

fish farm has been made; that a permanent metal utility pole has

been erected to support a deer stand; and that people have

actually hunted there, been billed, and have paid Exit 94, Inc.,

for the privilege of using its property for hunting. The fact

that there remains a great deal more to do to get the camp

project out of the red and showing a profit does not preclude an

exemption for an on-premises sign, although the length of time

the property will be "in development" and the validity of the

steps already taken toward creating or expanding a fully-

functioning business entity should be weighed. See the Final

Order in Department of Transportation v. Florida Roadmaster Inn

Services, Corp. , DOAH Case No. 91-4785T (Recommended Order

March 24, 1992; Final Order June 1, 1992), affirmed in

Roadmaster Inn Services, Corp. v. Department of Transportation ,

621 So. 2d 435 (Fla. 1st DCA 1993), distinguishing Harrison v.

Department of Transportation , 349 So. 2d 720 (Fla. 1st DCA

1977), decided under a previous statute, and rejecting the

proposition that intent to develop a business in the future,

without more, is sufficient cause to invoke the on-premises

exemption. Herein, it was shown that significant activity

toward establishing a business activity on the property has

already occurred.

85. If the Exit 94, Inc., camp were a fully-developed

strip mall with these operable trucks parked in its concrete

parking lot, the trucks would clearly qualify for the on-

premises exemption under DOT's current approach to the

complaints against, and photographs of, other operable trucks

bearing only owner-identifiable material. Just because the camp

constitutes a rural "use" of land, is still in active

development, and its trucks are parked on the highest ground

currently available instead of on a concrete parking lot, should

not alter Exit 94, Inc.'s, entitlement to the on-premises

exemption for its operable trucks.

86. Accordingly, DOAH Case Nos. 00-4423T and 00-4424T,

against Exit 94, Inc., should be dismissed as not proven.

87. The foregoing conclusions make it unnecessary to

address Respondents' affirmative defense of selective

enforcement.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED

That the Department of Transportation enter its final order

(1 ) Dismissing Café Erotica of Florida, Inc., d/b/a Café

Erotica, as a party to this action; and

(2 ) Finding Café Erotica/We Dare to Bare/Adult Toys/Great

Food/Exit 94, Inc., not guilty of having unpermitted signs and

vacating the notices of violation against it.

DONE AND ENTERED this 12th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 2001.

ENDNOTE

1/ DOT asserts that 23 USC Section 131 and 23 CFR Sections

750.704 and 750.709 permit piercing of the corporate veil

whenever necessary to "curb attempts to improperly qualify

outdoor advertising as 'on-property signs'." I disagree.

Section 479.02(1), Florida Statutes, provides for DOT to:

"Administer and enforce the provisions of this chapter and the

agreement between the state and the United States Department of

Transportation relating to the size, lighting, and spacing of

signs in accordance with Title I of the Highway Beautification

Act of 1965 and Title 23, United States Code, and federal

regulations in effect as of the effective date of this act."

However, the quoted federal statute and regulations urged by

DOT only permit state laws and state regulations to contain

criteria, including a property test and a purpose test,

sufficiently specific to "curb attempts to improperly qualify

outdoor advertising on 'on-property' signs, such as signs on

narrow strips of land contiguous to the advertised activity when

the purpose is clearly to circumvent 23 USC Section 131."

In Florida's regulatory scheme, any such tests to determine

that a corporation's purpose is clearly to circumvent the law

would have to either clearly appear in the statute or be

promulgated by DOT as rules under Chapter 120, Florida Statutes.

Herein, I am compelled to apply existing Florida statutes

and case law to the evidence herein. There are no DOT rules

providing further tests to determine when a purpose exists to

circumvent the law.

COPIES FURNISHED:

Gary S. Edinger, Esquire

305 Northeast First Street

Gainesville, Florida 32601

Jodi B. Jennings, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0450

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

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 should be filed with the agency that

will issue the Final Order in this case.