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.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF TRANSPORTATION, )

12)

13Petitioner, )

15)

16vs. ) Case Nos. 00-4188T

21) 00-4189T

23CAFE EROTICA OF FLORIDA, INC., ) 00-4423T

30d/b/a CAFE EROTICA, and CAFÉ ) 00-4424T

37EROTICA/WE DARE TO BARE/ADULT )

42TOYS/GREAT FOOD/EXIT 94, INC., )

47)

48Respondents. )

50)

51RECOMMENDED ORDER

53Upon due notice, a disputed-fact hearing was held on

62March 7, 2001, in Gainesville, Florida, before Ella Jane P.

72Davis, a duly-assigned Administrative Law Judge of the Division

81of Administrative Hearings.

84APPEARANCES

85For Petitioner : Jodi B. Jennings, Esquire

92Department of Transportation

95605 Suwannee Street

98Haydon Burns Building, Mail Station 58

104Tallahassee, Florida 32399-0450

107For Respondent : Gary S. Edinger, Esquire

114305 Northeast First Street

118Gainesville, Florida 32601

121STATEMENT OF THE ISSUE

125Are the four notices of violation against Respondents

133valid, and if valid, may the Department of Transportation

142require that the allegedly offending signs be removed?

150PRELIMINARY STATEMENT

152This consolidated proceeding was initiated by the filing of

161requests for a disputed-fact hearing by Respondent Café Erotica

170of Florida, Inc., d/b/a Café Erotica and Respondent Café

179Erotica/Dare to Bare/Adult Toys/Great Food/Exit 94, Inc.,

186pursuant to Section 120.57(1), Florida Statutes, in response to

195four Notices of Violation issued by the Florida Department of

205Transportation (DOT) for the erection of allegedly illegal

213signs. The cases were referred to the Division of

222Administrative Hearings sequentially, beginning on or about

229October 10, 2000. The four cases were consolidated on

238November 17, 2000.

241At the disputed-fact hearing, DOT presented the oral

249testimony of Tom Simmons, Donald Cerlanek, and Juanice Hagan.

258Joint Exhibits 1 through 5 and Petitioner's Exhibits 6 through

26812, 15 through 18, and 20 through 26, were admitted in evidence.

280Petitioner's Exhibits 13, 14 and 19 were withdrawn.

288Café Erotica of Florida, Inc., d/b/a Café Erotica and Café

298Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc.,

306presented the oral testimony of Jerry Sullivan, William Harry,

315Russell Market, and Patricia Doorbar. Respondent's Exhibits 1a

323through 1cc and 2 through 16 were admitted in evidence.

333At the close of DOT's case-in-chief, Respondent Café

341Erotica of Florida, Inc. d/b/a Café Erotica moved for its

351dismissal as a party on the grounds that no evidence had been

363presented which would make it a proper party hereto, and

373Respondent Café Erotica/We Dare to Bare/Adult Toys/Great

380Food/Exit 94, Inc., moved to dismiss on the basis that no prima

392facie case against it had been proven. These motions were

402denied, subject to revisitation in the Conclusions of Law,

411infra .

413A Transcript was filed with the Division on May 2, 2001.

424The parties' respective timely-filed Proposed Recommended Orders

431have been considered in preparation of this Recommended Order.

440FINDINGS OF FACT

4431. On or about September 21, 2000, DOT became aware that

454two trucks bearing written material were parked adjacent to

463DOT's right-of-way on the west side of Interstate 95 (I-95) in

474St. Johns County in such a manner that the written material was

486visible from the main-traveled way of I-95. DOT issued four

496Notices of Violation against the two trucks.

5032. Notice of Violation number 10B TS 2000 539 was issued

514to Café Erotica of Florida, Inc., d/b/a Café Erotica on

524September 21, 2000, against a truck located adjacent to I-95,

5342.015 miles north of SR 207, at milepost 15.823. This violation

545notice became DOAH Case No. 00-4188T.

5513. Notice of Violation number 10B TS 2000 540 was issued

562to Café Erotica of Florida, Inc., d/b/a Café Erotica on

572September 21, 2000, against a truck located adjacent to I-95,

5822.041 miles north of SR 207, at milepost 15.849. This violation

593notice became DOAH Case No. 00-4189T.

5994. Notice of Violation number 10B BB 2000 539 was issued

610to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94,

619Inc., c/o Gary Edinger, the registered agent for the

628corporation, on October 10, 2000, against the truck located

637adjacent to I-95, 2.015 miles north of SR 207. This violation

648notice became DOAH Case No. 00-4423T.

6545. Notice of Violation number 10B BB 2000 540 was issued

665to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94,

674Inc., c/o Gary Edinger, the registered agent for the

683corporation, on October 10, 2000, against the truck located

692adjacent to I-95, 2.041 miles north of SR 207. This violation

703notice became DOAH Case No. 00-4424T.

7096. All of the foregoing notices alleged that the trucks

719are in violation of Chapter 479, Florida Statutes, in that they

730are unpermitted signs.

7337. On October 24, 2000, DOT issued a letter to Café

744Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc.,

752advising it that the trucks which were issued the above-

762referenced notices of violation had been moved temporarily out

771of view and then returned to visibility at each other's previous

782milepost location. The letter advised that notwithstanding the

790movement of the trucks within their general location, the trucks

800remained illegal signs pursuant to Chapter 479, Florida

808Statutes.

8098. I-95 is part of the Interstate Highway System. The two

820trucks are located at times within 660 feet of the nearest edge

832of the right-of-way of I-95. The trucks can be seen without

843visual aid by motorists of normal visual acuity traveling on

853I-95.

8549. Admitted Fact Four of the parties' prehearing

862stipulation was that at the time the notices of violation were

873issued, the trucks displayed the words "Café Erotica/We Dare to

883Bare/Adult Toys/Great Food/Exit 94, Inc." However, their

890Admitted Fact Five, incorporating photographs, and other

897photographs in evidence reveal that one truck had the foregoing

907display without the slashes and one truck juxtaposed the phrases

"917Great Food" and "Adult Toys," also without the slashes. The

927trucks were located within 15 feet of the right-of-way fence and

938were parked on raised mounds of dirt, elevating them above the

949surrounding terrain. Immediately adjacent to the trucks were

957light fixtures with halogen lights aimed at the sides of the

968trucks. If electricity had been available, the lights could

977have illuminated the vehicles. The trucks were intentionally

985placed at their locations.

98910. As of January 5, 2001, additional verbiage was added

999to the trucks which states, "Hunt & Fish Camp." As of the

1011March 7, 2001, date of hearing, the trucks still contained this

1022additional verbiage.

102411. On both trucks, the letters are all capitalized; the

1034size of the letters and the paint colors used call the viewer's

1046attention to the phrases, "CAFE ¢ EROTICA," "WE DARE TO BARE,"

"1057ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation

"1066INC.," is the phrase smallest in size, located at the very

1077bottom right, relatively inconspicuous, and the words, "hunt &

1086fish camp," follow, vertical to the rest of the verbiage. There

1097are no addresses, telephone numbers, arrows, or other

1105identifying information.

110712. Respondent Cafe Erotica/We Dare to Bare/Adult

1114Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all

1124times material, Café Erotica/We Dare to Bare/Adult Toys/Great

1132Food/Exit 94, Inc., has been a corporation in good standing with

1143the Florida Department of State, which has registered and

1152approved its corporate name pursuant to Section 607.0401,

1160Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan,

1169is incorporator, President, shareholder, and Director of the

1177corporation, which will hereafter be referred to as "Exit 94,

1187Inc."

118813. Exit 94, Inc., owns, insures, and maintains the two

1198trucks which are the subject of this proceeding.

120614. Exit 94, Inc., likewise owns the real property on

1216which the trucks are located, which parcel consists of

1225approximately 11 acres situated between I-95 exits 94 and 95.

123515. Exit 94, Inc., does not sell food or adult toys. It

1247does not offer dancers for public viewing. The business of Exit

125894, Inc., is developing a hunting and fishing camp at the

1269property it owns, the property where its trucks were cited by

1280DOT, between I-95 exits 94 and 95.

128716. Respondent Café Erotica of Florida, Inc., d/b/a Café

1296Erotica, is a Florida corporation which holds the license and

1306owns the assets of the Café Erotica restaurant. Jerry Sullivan

1316also is president, shareholder, and owner of Café Erotica of

1326Florida, Inc., which will hereafter be referred-to as "Café

1335Erotica."

133617. The St. Johns Management Company manages the Café

1345Erotica restaurant. Jerry Sullivan also is the President and

1354shareholder of the St. Johns Management Company.

136118. The Café Erotica restaurant is a 24-hour per day,

1371full-service restaurant which features dancers clad in bathing

1379suits and which sells adult toys.

138519. The Café Erotica restaurant is located at 2620 State

1395Road 207 (SR-207), at the intersection of SR 207 and the exit 94

1408off-ramps from I-95. The real property owned by Café Erotica is

1419not contiguous to the subject real property owned by Exit 94,

1430Inc. The real property owned by Exit 94, Inc., which is the

1442subject of DOT's notices of violation is approximately seven

1451miles from the Café Erotica restaurant.

145720. The Café Erotica restaurant currently advertises on

1465its premises and on a billboard at exit 94 of I-95. In the

1478past, Café Erotica has advertised "we dare to bare," "adult

1488toys," and "exit 94" on other billboards located adjacent to I-

149995 in St. Johns County. Café Erotica no longer rents billboards

1510in these locations.

151321. The advertisements of Café Erotica currently at exit

152294 of I-95 include the words, "private dances," and "great

1532food/adult toys." The advertising is specifically directed at

1540motorists, including truck drivers, on I-95.

154622. In addition to the real property where its trucks were

1557cited by DOT, which real property Exit 94, Inc., holds by

1568warranty deed, Exit 94, Inc., leases property at the southeast

1578corner of I-95's exit 93, where SR-206 intersects with

1587I-95. At that location, Exit 94, Inc ., displays a 14-foot by

159925-foot permanent billboard sign reading "Café Erotica/We Dare

1607to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note

1614juxtaposition of part of the corporate name). Below this

1623billboard, on the same leased property, is a smaller sign

1633stating "Fish Camp" with a telephone number (P-11 ; TR 66-64, 73-

164474, 183-184). Exit 94, Inc., claims to maintain an office and a

1656telephone on this leased property.

166123. Mr. Sullivan's primary business is that of renting

1670billboards for advertising purposes, which he owns. He has

1679advertised on leased signs and has knowledge of DOT's sign

1689permit requirements.

169124. At one time, Mr. Sullivan intended to place a

1701billboard on the property owned by Exit 94, Inc. He has not

1713done so.

171525. Neither Café Erotica nor Exit 94, Inc., has applied to

1726DOT for sign permits for the subject trucks, nor paid any sign

1738permit fees for them. No sign permits have been issued to any

1750entity for the subject trucks.

175526. When the Notices of Violation were issued, DOT

1764inspectors did not enter on the real property owned by Exit 94,

1776Inc., or pull any business licenses for the property. They

1786viewed the trucks from I-95. No improvements were visible from

1796I-95. DOT did not undertake any investigation to determine the

1806owner(s) of the subject trucks or subject real property.

181527. Café Erotica does not own any interest in the subject

1826trucks or real property, and no citizen testified that the

1836trucks had caused him/her to patronize the Café Erotica.

184528. DOT witnesses acknowledged that the Notices of

1853Violation issued to Café Erotica were essentially issued in

1862error because DOT did not know the identity of the owner of the

1875subject trucks and real property.

188029. Upon discovering that Café Erotica did not own any

1890interest in the subject trucks or real property, DOT made no

1901effort to dismiss the violations against Café Erotica.

190930. Jerry Sullivan has decision-making authority for both

1917Respondents as a corporate officer of both corporations.

192531. Jerry Sullivan makes management decisions concerning

1932Café Erotica, including whether, and how, to advertise.

194032. Jerry Sullivan has directed all activity on the Exit

195094, Inc., property. He anticipates creating, maintaining, and

1958charging people for the privilege of using the subject property

1968as a fishing and hunting camp. He also intends to reward

1979employees and clients of his various enterprises with free

1988privileges at the camp.

199233. Ninety percent of the time, the subject trucks are

2002parked on the subject property. However, from time to time, the

2013trucks, one of which was burned out and one of which has a "for

2027sale" sign painted on its windshield, are driven off the Exit

203894, Inc., property to haul equipment and corn to the subject

2049property, for "truck maintenance," and for incidental uses in

2058connection with Exit 94, Inc., and Mr. Sullivan's other business

2068entities, including Café Erotica. On some of these occasions,

2077the trucks are parked in the parking lot of the Café Erotica

2089restaurant. The trucks are used off the Exit 94, Inc., property

2100only two or three times per month. Except when under repair ,

2111they can be driven on the roads and highways.

212034. Exit 94, Inc., paid approximately $35,000 for the

2130subject property on or about April 9, 1999, well before the

2141notices of violation.

214435. Eight months prior to hearing (approximately three

2152months before the notices of violation), Exit 94, Inc. dug a

2163pond in a naturally low spot and/or a natural basin where

2174Mr. Sullivan believed a pond originally had been on the subject

2185property. A solar panel pump was installed to put water into

2196the excavation because getting electricity run to the property

2205was prohibitively expensive.

220836. Inspection of the subject property by DOT personnel

2217only occurred about two-and-one-half weeks before the disputed-

2225fact hearing. At that time, the solar pump used to fill the

2237pond with water was not working well, so that the possibility of

2249fish living in the rather shallow pond was highly unlikely. The

2260pond was not stocked with fish. The property was not stocked

2271with game animals. There was also one very ramshackle deer

2281blind on the property and a permanent metal, utility pole had

2292been erected to support another deer blind . There were no

2303utilities, restrooms, offices, or facilities to clean game on

2312the premises. No fishing equipment was available for purchase.

2321This situation was memorialized by photographs in evidence.

232937. The Exit 94, Inc., property has only one entrance

2339which is not directly accessible from a public roadway. To

2349reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at

2361exit 94, where Café Erotica is located, and proceeds to a

2372private dirt road created and owned by Georgia-Pacific timber

2381company, and then drives approximately one mile along that dirt

2391road over the timber company's land.

239738. Thousands of acres of scrub pine belonging to the

2407timber company surround Exit 94, Inc.'s property.

241439. Entrance to the timber company land is through a

2424fence/gate. The timber company gate is "posted," warning that

2433hunting is not permitted on its land and that violators will be

2445prosecuted.

244640. The Exit 94, Inc., property is also "posted," and

2456therefore not open to the general public. There is a "Café

2467Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc.,

2475Hunt & Fish Camp" sign at its entrance.

248341. It cannot be inferred, as urged by DOT, that if a real

2496property owner "posts" its property so the owner may

2505subsequently prosecute trespassers and poachers, the owner also

2513cannot charge a fee to customers, invited guests, or business

2523invitees who hunt or fish on its property with its permission.

2534avelling as described above, there are approximately

2541nine and one-half miles between exit 94 of I-95 and the Exit 94,

2554Inc., property. There are no signs advertising a "hunt and fish

2565camp" on this stretch of land, but Exit 94, Inc., has its

2577billboard and other sign at Exit 93. (See Finding of Fact 22.)

258943. Exit 94, Inc., presented accounts showing it spent

2598over $7,003 maintaining its signs since 1999 and over $12,000 on

2611the subject trucks.

261444. Exit 94, Inc., lists addresses and locations other

2623than the subject property as its business address(es) for

2632various purposes. It maintains no office or telephone on the

2642subject property. The only building on the subject property is

2652a very small storage shack, placed there by Exit 94, Inc. The

2664shack is not habitable as overnight lodging. It was designed to

2675hold repair equipment and corn for seeding the pond for

2685waterfowl and seeding the woods for deer. There is no evidence

2696whether this method of luring game from the surrounding area is

2707legal or illegal, but it is certainly feasible, given the

2717location of the subject property. (See Finding of Fact 38.)

272745. Russell Market is General Manager for the Café Erotica

2737restaurant. He was directed by Mr. Sullivan to check on

2747Exit 94, Inc.'s, subject property, and he did so once a week and

2760scattered corn for nine months. He saw wild turkeys on the

2771subject property.

277346. Bill King is affiliated with Mr. Sullivan's companies.

2782He has not hunted the subject property, but he sighted one of

2794the deer stands.

279747. No witness testified to having camped overnight on the

2807subject property.

280948. Bill Harry, who is employed by Mr. Sullivan, has

2819hunted the subject property three or four times without success,

2829despite once seeing a deer.

283449. Jerry Sullivan killed a deer on the subject property.

284450. There is no parking lot on the subject property.

2854Respondents' witnesses testified that the subject trucks are

2862parked on raised mounds of earth because the subject property is

2873swampy. Only several hundred-by-60 feet have been cleared of

2882brush.

288351. There is no telephone service to the subject property.

2893If someone dials the telephone number listed for Exit 94, Inc.

2904on its application to be a fish farm (see Finding of Fact 55)

2917which is the same number on its sign at I-95's exit number 93

2930(see Finding of Fact 22), a recorded message relays the caller

2941to a telephone number for the cell phone Mr. Sullivan carries on

2953his person.

295552. No utilities are currently available on the subject

2964property, but the solar pump is in use at the pond. Bill Harry

2977repaired the pond pump a few days after showing DOT personnel

2988around the subject property. (See Finding of Fact 36.) At

2998hearing, he testified that the pond is now filling well with

3009water.

301053. When the pond is full, Mr. Sullivan intends to stock

3021it with fish.

302454. Exit 94, Inc., holds an occupational license from

3033St. Johns County as a "fish camp." In issuing this license, the

3045County accepted Exit 94, Inc.'s, designation of its business

3054without further inquiry.

305755. Exit 94, Inc., has applied for a "fish farm" license

3068from the Florida Game and Freshwater Fish Commission.

307656. Exit 94, Inc., produced invoices sent to clients for

3086hunting and fishing privileges on the subject property,

3094corresponding checks in payment, and tax returns. Patricia

3102Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's

3113other business entities, testified that she had drafted all of

3123the invoices, and had prepared the tax returns. She further

3133testified that she maintained Exit 94, Inc.'s corporate

3141financial books in accord with generally accepted accounting

3149principles.

315057. The invoices and payments reflect that other business

3159entities controlled by Mr. Sullivan or his family members were

3169billed and paid for use of the Exit 94, Inc., property.

318058. Exit 94, Inc., currently operates at a loss, made up

3191as necessary by Mr. Sullivan.

319659. No legitimate reason was demonstrated to pierce the

3205corporate veil of any of Mr. Sullivan's corporations.

321360. Approximately two weeks before the disputed-fact

3220hearing, Exit 94, Inc ., made improvements to the subject

3230property. These included laying out feed corn on the ground,

3240repairing a deer stand so it could support one or more hunters,

3252and repairing the solar pump. See supra . These improvements

3262were memorialized by photographs in evidence.

326861. Respondents asserted that DOT has selectively enforced

3276the sign law against them on the basis of many photographs of

3288trucks bearing written material which were admitted in evidence.

3297The trucks typically carry a business name, address and

3306telephone number. Some carried only a business name.

331462. DOT rarely issues notices of violations for trucks.

3323Within the last three-and-one-half years, trucks constituted

3330approximately five such notices out of 3500 sign violation

3339notices of all kinds, not just off-premises signs. The notices

3349to these two Respondents constitute four of the five notices.

335963. DOT has promulgated no rules or policies specifying

3368the factors to be considered when evaluating whether an

3377operational truck constitutes an "off-premises sign" worthy of a

3386violation notice.

338864. In the normal course of business, DOT inspectors

3397determine whether trucks constitute "on-premises signs" on a

3405case-by-case analysis which weighs content of the sign, usage of

3415the truck, location and length of time the truck is in a single

3428location, and whether the sign content advertises the business

3437at the location where the truck is parked, advertises another

3447business, or advertises anything at all. Inspectors have wide

3456discretion in issuing notices of violation.

346265. With respect to the majority of Respondents'

3470photographs presented at hearing, DOT representatives gave

3477reasonable explanations why the truck owners had not been

3486notified of violations, usually because the truck was being

3495operated on the highway, was not parked over-long away from the

3506business premises which it named, or was parked on the property

3517of the business to which it belonged or which it named. In one

3530instance, a contractor's truck was not charged with a violation

3540because it was parked at a construction site which also bore a

3552sign proclaiming that the construction work was being done by

3562that contractor. Sometimes the reason a truck had not been

3572cited was because the truck had not been located. DOT does not

3584research which corporations or persons own or operate trucks

3593painted with business names, and apparently, precision in

3601painting a business name on other operable trucks had no effect

3612on DOT's decision to treat other operable trucks as "on-premises

3622signs" so that no notices of violation were issued against them.

363366. Similar photographs of trucks which Mr. Sullivan had

3642sent to DOT were personally evaluated by DOT's Assistant Right-

3652of-Way Manager for Operations, but this measure was only in

3662response to the Respondents' allegations of selective

3669enforcement in the instant case. The Assistant Right-of-Way

3677Manager directed DOT district personnel to take either further

3686investigative or regulatory action as she instructed on a case-

3696by-case basis. One truck for "Smiley's" was subsequently issued

3705a violation notice.

3708CONCLUSIONS OF LAW

371167. The Division of Administrative Hearings has

3718jurisdiction over the parties and subject matter of this cause,

3728pursuant to Section 120.57(1) and Chapter 479, Part III, Florida

3738Statutes.

373968. DOT contends that the trucks cited constitute "signs"

3748as defined in Chapter 479, Florida Statutes; that they do not

3759advertise the business of Exit 94, Inc., and that, therefore,

3769the trucks cannot be "on-premises" signs, but are, in fact,

"3779off-premises" advertisements for the Café Erotica, and so must

3788be permitted by DOT, for a fee, or removed by the sign owner.

3801Respondents maintained that the subject trucks are used for

3810transport and storage of materials related to Exit 94, Inc.'s,

3820business on the subject property which Exit 94, Inc., owns and

3831is developing as a fishing and hunting camp.

383969. The remedy sought in this case is not precisely a

"3850penal" one as contemplated by the recent case of Chancellor

3860Media Whiteco Outdoor v. Department of Transportation , 2001 W.L.

3869201517, 26 Fla. L. Weekly D627 (Fla. 5th DCA March 2, 2001),

3881because there is no sign permit to revoke. However, the effect

3892is the same, in that DOT seeks to deny Respondent Exit 94, Inc.,

3905the right to use its own personal property (the subject trucks)

3916on its own real property. Accordingly, this case involves a

3926valuable economic property right, and DOT should be held to the

3937higher burden of proof established in that case of "clear and

3948convincing evidence." However, even if DOT merely has the duty

3958of going forward and proving each violation by a preponderance

3968of the evidence, it cannot prevail. See Florida Department of

3978Transportation v. J.W.C., Co. Inc., and the Department of

3987Environmental Regulation , 396 So. 2d 778 (Fla. 1st DCA 1981).

399770. The motion to dismiss Café Erotica as a party is well-

4009founded. Respondent Café Erotica of Florida, Inc., d/b/a Café

4018Erotica, may have incidentally benefited by the words on the

4028trucks owned by Respondent Café Erotica/We Dare to Bare/Adult

4037Toys/Great Food/Exit 94, Inc., but Café Erotica does not own the

4048subject real property or trucks, and therefore, it is not a

4059proper party Respondent. DOAH Case Nos. 00-4188T and 00-4189T

4068should be dismissed.

407171. Section 479.01(17), Florida Statutes, provides, in

4078pertinent part,

"4080Sign" means any combination of structure

4086and message in the form of an outdoor

4094advertising sign, display, device, figure,

4099painting, drawing, message, placard, poster,

4104billboard, advertising structure,

4107advertisement, logo, symbol, or other form,

4113whether placed individually or on a V-type,

4120back-to-back, side-to-side, stacked, or

4124double-faced display or automatic changeable

4129facing, designed, intended, or used to

4135advertise or inform, any part of the

4142advertising message or informative contents

4147of which is visible from any place on the

4156main-traveled way.

415872. Section 479.01(6), Florida Statutes, provides,

"4164Erect" means to construct, build, raise,

4170assemble, place, affix, attach, create,

4175paint, draw, or in any other way bring into

4184being or establish; but it does not include

4192any of the foregoing activities when

4198performed as an incident to the change of

4206advertising message or customary maintenance

4211or repair of a sign.

421673. Section 479.07(1), Florida Statutes, provides,

4222Except as provided in Sections 479.105(1)(e)

4228and 479.16, a person may not erect, operate,

4236use or maintain, or cause to be erected,

4244operated, used or maintained, any sign on

4251the State Highway System outside an

4257incorporated area or on any portion of the

4265interstate or federal-aid primary highway

4270system without first obtaining a permit for

4277the sign from the department and paying the

4285annual fee as provided in this section. For

4293purposes of this section, "on any portion of

4301the State Highway System or on any portion

4309of the interstate or federal-aid primary

4315system" shall mean a sign located within the

4323controlled area which is visible from any

4330portion of the main-traveled way of such

4337system.

433874. Section 479.01(4), Florida Statutes, defines

"4344controlled area" to mean "660 feet or less from the nearest

4355edge of the right-of-way of any portion of the State Highway

4366System, interstate, or federal-aid primary system. . . ."

437575. Section 479.150(1), Florida Statutes, provides,

4381Any sign which is located adjacent to the

4389right-of-way of any highway on the State

4396Highway System outside an incorporated area

4402or adjacent to the right-of-way on any

4409portion of the interstate or federal-aid

4415primary highway system which sign was

4421erected, operated, or maintained without the

4427permit required by Section 479.07(1) having

4433been issued by the department, is declared

4440to be a public nuisance and a private

4448nuisance and shall be removed as provided in

4456this section.

445876. A straightforward reading of the statute reveals that

4467the subject trucks are not signs. They are neither

"4476structures," nor "erected."

447977. Moreover, the instant case is on all fours with Sun

4490City Shell, Inc. v. Department of Transportation , 626 So. 2d

45001097 (Fla. 1st DCA 1993), where the First District Court of

4511Appeal determined that a parked trailer was not a "sign" under

4522the foregoing outdoor advertising statute merely because the

4530trailer was visible from a federally-assisted road. Therein, a

4539fully-operational 40-foot, over-the-road trailer detached from,

4545but normally towed by, a truck, and bearing only the truck

4556owner's name in large, black lettering along the side, with no

4567other markings such as an arrow, address, or phone number and

4578primarily used to store equipment for the truck owner's mining

4588operation on leased real property was held not "designed,

4597intended, or used to advertise or inform," and thus not a sign.

4609See Department of Transportation v. Sun City Shell, Inc. , DOAH

4619Case No. 91-4733T (Recommended Order April 27, 1992), for facts

4629not fully discussed in the appellate opinion. The trucks herein

4639are also very different than the single truck in Department of

4650Transportation v. Sunshine Patio Shops, Inc. , DOAH Case

4658No. 86-2288T (Recommended Order, December 15, 1986) which truck

4667was used as a "retail establishment."

467378. Herein, if anything, the case is stronger for

4682Respondent Exit 94, Inc ., because it also owns the land upon

4694which the trucks are parked, and the trucks are operated

4704regularly on the highways in furtherance of their owner's

4713business conducted on the real property. Also, after the

4722notices of violation, Exit 94, Inc., took steps to minimize any

4733incidental value of its corporate name or of its trucks to Café

4745Erotica by painting additional language on the trucks to clearly

4755identify them as belonging to a "hunt and fish camp."

476579. The corporate name of the truck's owner may not make

4776any logical sense for a hunting and fishing camp as far as DOT

4789is concerned, and DOT may speculate that it has some incidental

4800value to Mr. Sullivan's other corporate Respondent in this case,

4810but denial of use of a duly-registered corporate name is not

4821DOT's prerogative. A corporation has a right to use the full

4832corporate name approved by the Department of State. In light of

4843the corporate books and materials provided by Exit 94, Inc., and

4854Ms. Doobar's testimony, DOT has been unable to demonstrate

4863herein any legitimate reason to "pierce the corporate veil" or

4873to determine that Exit 94, Inc., is a bogus or fraudulent

"4884front" for something else. Many individuals hold ownership and

4893managerial interests in more than one corporation and exercise

4902those interests to the mutual benefit of more than one

4912corporation while limiting their personal liability. The law

4920permits this use of a corporate shield. 1

492880. Given DOT's pattern of not checking who are the

4938corporate owners of operable trucks and of not citing operable

4948trucks as "signs," even where the trucks bear imprecise or

4958jumbled statements of owners' names, corporate or otherwise, the

4967absence of slashes on both of Exit 94, Inc.'s, trucks and the

4979juxtaposition of phrases within the corporate name on one truck

4989are immaterial, and both of Exit 94, Inc.'s, trucks should be

5000afforded the protection of the decision in the Shell City Sun,

5011Inc. , case.

501381. Assuming, arguendo , but not ruling, that the corporate

5022trucks are "signs," an exemption from the permitting

5030requirements of Section 479.07(1), Florida Statutes, exists for

"5038on-premises" signs, as defined in Section 479.16(1), Florida

5046Statutes.

504782. Section 479.16(1), Florida Statutes, provides in

5054pertinent part:

5056The following signs are exempt from the

5063requirement that a permit be obtained under

5070the provisions of this chapter but are

5077required to comply with the provisions of

5084Section 479.11(4)-(8):

5086(1 ) Signs erected on the premises of an

5095establishment, which signs consist primarily

5100of the name of the establishment or which

5108identify the principal or accessory

5113merchandise, services, activities, or

5117entertainment sold, produced, manufactured,

5121or furnished on the premises of the

5128establishment and which comply with the

5134lighting restrictions under department rule

5139adopted pursuant to Section 479.11(5), . . .

514783. The burden to establish an exemption falls upon the

5157party seeking to establish the exemption, in this case, Exit 94,

5168Inc. See Florida Department of Transportation v. J.W.C. Co.

5177Inc., and the Department of Environmental Regulation , supra .

518684. While DOT witnesses may consider the wild game on the

5197subject property to be inferior, scarce, or non-existent, may

5206consider the equipment inferior, and may consider the location

5215poor, these opinions do not refute Exit 94, Inc.'s evidence

5225establishing that a pond was dug and a solar panel pump was

5237installed prior to the notices of violation; that the property

5247has been legally licensed for a camp; that an application for a

5259fish farm has been made; that a permanent metal utility pole has

5271been erected to support a deer stand; and that people have

5282actually hunted there, been billed, and have paid Exit 94, Inc.,

5293for the privilege of using its property for hunting. The fact

5304that there remains a great deal more to do to get the camp

5317project out of the red and showing a profit does not preclude an

5330exemption for an on-premises sign, although the length of time

5340the property will be "in development" and the validity of the

5351steps already taken toward creating or expanding a fully-

5360functioning business entity should be weighed. See the Final

5369Order in Department of Transportation v. Florida Roadmaster Inn

5378Services, Corp. , DOAH Case No. 91-4785T (Recommended Order

5386March 24, 1992; Final Order June 1, 1992), affirmed in

5396Roadmaster Inn Services, Corp. v. Department of Transportation ,

5404621 So. 2d 435 (Fla. 1st DCA 1993), distinguishing Harrison v.

5415Department of Transportation , 349 So. 2d 720 (Fla. 1st DCA

54251977), decided under a previous statute, and rejecting the

5434proposition that intent to develop a business in the future,

5444without more, is sufficient cause to invoke the on-premises

5453exemption. Herein, it was shown that significant activity

5461toward establishing a business activity on the property has

5470already occurred.

547285. If the Exit 94, Inc., camp were a fully-developed

5482strip mall with these operable trucks parked in its concrete

5492parking lot, the trucks would clearly qualify for the on-

5502premises exemption under DOT's current approach to the

5510complaints against, and photographs of, other operable trucks

5518bearing only owner-identifiable material. Just because the camp

5526constitutes a rural "use" of land, is still in active

5536development, and its trucks are parked on the highest ground

5546currently available instead of on a concrete parking lot, should

5556not alter Exit 94, Inc.'s, entitlement to the on-premises

5565exemption for its operable trucks.

557086. Accordingly, DOAH Case Nos. 00-4423T and 00-4424T,

5578against Exit 94, Inc., should be dismissed as not proven.

558887. The foregoing conclusions make it unnecessary to

5596address Respondents' affirmative defense of selective

5602enforcement.

5603RECOMMENDATION

5604Upon the foregoing findings of fact and conclusions of law,

5614it is

5616RECOMMENDED

5617That the Department of Transportation enter its final order

5626(1 ) Dismissing Café Erotica of Florida, Inc., d/b/a Café

5636Erotica, as a party to this action; and

5644(2 ) Finding Café Erotica/We Dare to Bare/Adult Toys/Great

5653Food/Exit 94, Inc., not guilty of having unpermitted signs and

5663vacating the notices of violation against it.

5670DONE AND ENTERED this 12th day of July, 2001, in

5680Tallahassee, Leon County, Florida.

5684___________________________________

5685ELLA JANE P. DAVIS

5689Administrative Law Judge

5692Division of Administrative Hearings

5696The DeSoto Building

56991230 Apalachee Parkway

5702Tallahassee, Florida 32399-3060

5705(850) 488- 9675 SUNCOM 278-9675

5710Fax Filing (850) 921-6847

5714www.doah.state.fl.us

5715Filed with the Clerk of the

5721Division of Administrative Hearings

5725this 12th day of July, 2001.

5731ENDNOTE

57321/ DOT asserts that 23 USC Section 131 and 23 CFR Sections

5744750.704 and 750.709 permit piercing of the corporate veil

5753whenever necessary to "curb attempts to improperly qualify

5761outdoor advertising as 'on-property signs'." I disagree.

5768Section 479.02(1), Florida Statutes, provides for DOT to:

"5776Administer and enforce the provisions of this chapter and the

5786agreement between the state and the United States Department of

5796Transportation relating to the size, lighting, and spacing of

5805signs in accordance with Title I of the Highway Beautification

5815Act of 1965 and Title 23, United States Code, and federal

5826regulations in effect as of the effective date of this act."

5837However, the quoted federal statute and regulations urged by

5846DOT only permit state laws and state regulations to contain

5856criteria, including a property test and a purpose test,

5865sufficiently specific to "curb attempts to improperly qualify

5873outdoor advertising on 'on-property' signs, such as signs on

5882narrow strips of land contiguous to the advertised activity when

5892the purpose is clearly to circumvent 23 USC Section 131."

5902In Florida's regulatory scheme, any such tests to determine

5911that a corporation's purpose is clearly to circumvent the law

5921would have to either clearly appear in the statute or be

5932promulgated by DOT as rules under Chapter 120, Florida Statutes.

5942Herein, I am compelled to apply existing Florida statutes

5951and case law to the evidence herein. There are no DOT rules

5963providing further tests to determine when a purpose exists to

5973circumvent the law.

5976COPIES FURNISHED:

5978Gary S. Edinger, Esquire

5982305 Northeast First Street

5986Gainesville, Florida 32601

5989Jodi B. Jennings, Esquire

5993Department of Transportation

5996605 Suwannee Street

5999Haydon Burns Building, Mail Station 58

6005Tallahassee, Florida 32399-0450

6008James C. Myers

6011Clerk of Agency Proceedings

6015Department of Transportation

6018Haydon Burns Building, Mail Station 58

6024605 Suwannee Street

6027Tallahassee, Florida 32399-0450

6030Pamela Leslie, General Counsel

6034Department of Transportation

6037Haydon Burns Building, Mail Station 58

6043605 Suwannee Street

6046Tallahassee, Florida 32399-0450

6049NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6055All parties have the right to submit written exceptions within

606515 days from the date of this Recommended Order. Any exceptions

6076to this Recommended Order should be filed with the agency that

6087will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/09/2001
Proceedings: Agency Final Order
PDF:
Date: 10/09/2001
Proceedings: Final Order filed.
PDF:
Date: 07/12/2001
Proceedings: Recommended Order
PDF:
Date: 07/12/2001
Proceedings: Recommended Order issued (hearing held March 7, 2001) CASE CLOSED.
PDF:
Date: 07/12/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 05/22/2001
Proceedings: Proposed Recommended Order of Petitioner, Department of Transportation filed.
PDF:
Date: 05/22/2001
Proceedings: Proposed Recommended Order filed by Respondent.
PDF:
Date: 05/04/2001
Proceedings: Post-Hearing Order issued.
PDF:
Date: 05/02/2001
Proceedings: Notice of Filing Transcript filed.
Date: 04/25/2001
Proceedings: Transcript (2 Volumes) filed.
Date: 03/07/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 03/06/2001
Proceedings: Amended Prehearing Statement of Petitioner, Department of Transporation filed.
PDF:
Date: 02/26/2001
Proceedings: Order issued (the issues as to entry on land are now moot, no further orders on the pending motion will be entered).
PDF:
Date: 02/23/2001
Proceedings: Joint Prehearing Statement filed.
PDF:
Date: 02/21/2001
Proceedings: Response to Request for Admissions, Respondent filed.
PDF:
Date: 02/21/2001
Proceedings: Notice of Filing filed
PDF:
Date: 02/16/2001
Proceedings: Notice of Appearance (filed by R. Burdick).
PDF:
Date: 02/15/2001
Proceedings: Order Expediting Response issued.
PDF:
Date: 02/02/2001
Proceedings: Department`s Request for Entry on Land and Request for Order Expediting Response filed.
PDF:
Date: 01/22/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for March 7, 2001; 10:30 a.m.; Gainesville, FL).
PDF:
Date: 01/12/2001
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 01/12/2001
Proceedings: Amended Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 01/12/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for February 27, 2001; 10:30 a.m.; Gainesville, FL).
PDF:
Date: 01/09/2001
Proceedings: Petitioner`s, Department of Transportation, Notice of Serving Its First Set of Interrogatories to Respondents, Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc. and Cafe Erotica of Florida, Inc., d/b/a Cafe Erotica filed.
PDF:
Date: 01/09/2001
Proceedings: Petitioner`s First Request for Admissions by Respondent cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc. filed.
PDF:
Date: 01/09/2001
Proceedings: Petitioner`s First Request for Production filed.
PDF:
Date: 01/05/2001
Proceedings: Unopposed Motion for Continuance filed.
PDF:
Date: 11/17/2000
Proceedings: Order of Consolidation and Rescheduling Hearing (Case(s): 00-004423T, 00-004424T were added to the consolidated batch).
PDF:
Date: 10/30/2000
Proceedings: Order of Consolidation issued. (consolidated cases are: 00-004188T, 00-004189T)
PDF:
Date: 10/30/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 10/30/2000
Proceedings: Notice of Hearing issued (hearing set for December 18, 2000; 10:30 a.m.; Gainesville, FL).
PDF:
Date: 10/18/2000
Proceedings: Joint Response to Initial Order filed.
Date: 10/11/2000
Proceedings: Initial Order issued.
PDF:
Date: 10/10/2000
Proceedings: Notice of Appeal Rights filed.
PDF:
Date: 10/10/2000
Proceedings: Notice of Violation filed.
PDF:
Date: 10/10/2000
Proceedings: Request for Formal Administrative Hearing filed.
PDF:
Date: 10/10/2000
Proceedings: Agency referral filed.

Case Information

Judge:
ELLA JANE P. DAVIS
Date Filed:
10/10/2000
Date Assignment:
10/11/2000
Last Docket Entry:
10/09/2001
Location:
Gainesville, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (7):

Related Florida Statute(s) (8):