86-002288 Department Of Transportation vs. Suntime Patio Shops Status: Closed Recommended Order on Monday, December 15, 1986.

Summary: Pickup truck along road with sign did not constitute retail establishment so sign would qualify for exemption as an on premise sign.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION , )

)

Petitioner , )

)

vs. ) CASE NO. 86-2288T

)

SUNSHINE PATIO SHOPS , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, K. N. Ayers, held a public hearing in the above-

styled case on November 5, 1986, in Bartow, Florida.

APPEARANCES

For Petitioner : Vernon L. Whittier, Esquire

Department of Transportation

Haydon Burns Building

Tallahassee, Florida 32301

For Respondent : John A. Naser, Esquire

1349 South Florida Avenue

Lakeland, Florida 33803

By Notice of Alleged Violation dated April 18, 1986, the Department of

Transportation (DOT), Petitioner, seeks removal of a sign on SR 37, 50 feet

north of Brannon Road. As grounds therefor, it is alleged the sign does not

have a permit.

At the hearing, Petitioner called two witnesses, Respondent called one

witness and six exhibits were admitted into evidence.

Proposed findings have been submitted by the Petitioner. All of those

proposed findings are accepted. Those findings not included herein were deemed

unnecessary to the results reached.

FINDINGS OF FACT

1. SR 37 in the vicinity of Respondent's sign is a federal-aid highway.

2. Respondent's sign consists of panels mounted on steel pipes attached to

the bed of a pickup truck which is parked daily near the intersection of Brannon

Road on which Respondent's principal place of business is located. This

business is not visible from SR 37 and an orange arrow on the sign points in the

direction of Respondent's combined factory and store.

3. The sign and truck on which the sign is mounted, at a recent

inspection, was located 74 feet north of Brannon Road and 60 feet from an

existing, permitted sign on the same side of the highway facing in the same

direction.

4. Prior to placing the sign on the pickup truck, Respondent had a fixed

sign in the vicinity advertising and pointing to the combined factory and store

where outdoor furniture is manufactured and sold. Removal of this unpermitted

sign was demanded by DOT. The instant sign serves to replace the former sign.

No permit has ever been issued for this sign.

5. Another sign on the same side of the highway and facing in the same

direction as Respondent's sign is located within 1000 feet of Respondent's sign.

This other sign is a lawfully permitted sign for which tags have been issued.

6. Respondent's owner testified that he pays the owner of the land on

which he parks the truck with the sign at issue a monthly rental for the right

to use the land. No written lease for use of this site has been executed.

7. The truck providing a platform for the sign at issue is driven to the

site each morning and removed at dusk each evening. Respondent contends this

truck serves as a retail outlet for the outdoor furniture it makes and that such

furniture is sold at the site. Respondent also contends that the site is manned

at least one-half of each day. However, this testimony is not credible for the

reasons below.

8. Respondent has four employees--the owner, the owner's wife, a sales

employee and a factory employee. It is the duty of the factory employee to

place the truck on the site, place the furniture near the truck and at dusk

remove the furniture and the truck from the site along SR 37.

9. Neither the owner, his wife nor the sales employee man the truck at the

site. This leaves the factory employee who, presumably, is the man primarily

involved in assembling the furniture to be sold, to put in one-half of each day

at the pick- up taking orders for furniture.

10. Exhibit 5 consists of some 51 sales slips for furniture alleged to

have been sold from the pickup from May 3 to October 25, 1986. Approximately 6

of those invoices leave blank the space headed SALESMAN. Twenty-nine of those

invoices show DZ as the salesman and 17 show DS as salesman. Of those 17 sold

by DS 9 sales occurred on October 11 and October 18. All of those invoices show

the address of the business to be on Brannon Road.

11. No evidence was presented regarding the identities of DZ and DS.

Thomas F. Zink is President of Sunshine Patio Shops.

12. Respondent presented Exhibit 6, an occupational license for a dealer

in tangible personal property whose business is located at 553 Brannon Road.

13. Exhibit 4 is a photograph of the truck, sign and furniture displayed

alongside the truck which was submitted by Respondent. This photograph shows

the furniture all connected by a chain which presumably is fastened to the

truck. This has the effect of providing security from theft of the furniture.

Such security would not be needed if the site is manned while the furniture is

displayed.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

15. Section 479.01(7), Florida Statutes, provides a person may not erect a

sign on any federal-aid primary highway system without first obtaining a permit

from DOT. Subsection (9)(a)(1) provides no permit shall be granted for a sign

unless located ate least 1000 feet from any other permitted sign on the same

side of the highway if a federal-aid primary highway.

16. Section 479.16, Florida Statutes, provides the following signs are

exempt from the requirement that a permit be granted:

(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,

provided, manufactured, or furnished on the

premises of the establishment and which meet

the minimum standards of the Southern

Building Code.

17. Although Respondent contested the jurisdiction of Petitioner over the

area on which this sign is located, the evidence was unrebutted that this site

is alongside a federal-aid primary highway and DOT has jurisdiction.

18. The only real issue in these proceedings is whether the pickup truck

constituted a retail establishment at which Respondent's outdoor furniture was

sold so as to make this an on-premise sign for which no permit is required.

19. Whether or not this pickup truck constituted a retail establishment as

contended by Respondent is a factual issue and not a legal issue. For the

reasons contained in the facts as listed above, this factual determination is

that the truck does not constitute an establishment as contemplated in Section

479.16(1) above quoted. Despite Respondent's testimony that furniture is sold

at this pickup truck while alongside SR 37, the evidence of such sales is not

credible.

20. The vehicle replaced a fixed sign Respondent was required to remove;

the vehicle is driven to and from the site by the factory workers; no evidence

was presented that any of the other three employees of Respondent manned the

truck while it is alongside the highway bearing an arrow pointing to

Respondent's place of business; those sales reflected in Exhibit 5 were, on the

face of the exhibit, sold at the store located at 553 Brannon Road; and the

salesman's initials on Exhibit 5 indicate those sales were made at the Brannon

Road store.

21. From the foregoing, it is concluded that the sign in issue is not an

on-premise sign and not exempt from the requirement of a permit. It is,

RECOMMENDED that Sunshine Patio Shops be directed to remove its truck and

attached sign on SR 37 in the vicinity of Brannon Road.

ENTERED this 15th day of December, 1986, in Tallahassee, Florida.

____________________________

K. N. AYERS

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division Administrative Hearings

this 15th day of December, 1986.

COPIES FURNISHED:

Vernon L. Whittier, Esquire

Department of Transportation

Haydon Burns Building

Tallahassee, Florida 32301

John A. Naser, Esquire

Shannon & Naser

1349 South Florida Avenue

Lakeland, Florida 33803

Thomas Drawdy, Secretary

Department of Transportation

Haydon Burns Building

Tallahassee, Florida 32301