91-004733 Department Of Transportation vs. Sun City Shell, Inc. Status: Closed Recommended Order on Monday, April 27, 1992.

Summary: Trailer parked on lot adjacent to highway with only name of owner on side is not a sign.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4733T

)

)

SUN CITY SHELL, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by it duly

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

styled cased on March 3, 1992, at Tampa, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Florida Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Maxwell G. Battle, Jr., Esquire

Post Office Box 1889

Dunedin, Florida 34697-1889

STATEMENT OF THE ISSUES

Whether Respondent's trailer located on Old US 41 near Sun City in

Hillsborough County, is a sign and illegal by reason of not having been

permitted.

PRELIMINARY STATEMENT

By notice of alleged violation dated April 29, 1991, the Department of

Transportation (DOT), Petitioner, seeks to require Sun City Shell, Inc.,

Respondent, to remove a trailer parked along US 41 near Sun City in Hillsborough

County, Florida, with the name "Sun City Shell" in large letters on both sides

of the trailer. As grounds therefore, it is alleged the trailer constitutes a

sign and is illegal by reason of not having been issued a permit. Respondent

requested a formal hearing to challenge this alleged violation and these

proceedings followed.

At the hearing Petitioner called one witness, Respondent called one

witness, and eight exhibits were admitted into evidence. There is no dispute

regarding the operative facts here involved; accordingly, proposed findings

submitted by the parties are accepted.

Having considered all evidence presented, the following is submitted.

FINDINGS OF FACT

1. DOT is the state agency charged with enforcing provisions of Chapter

479, Florida Statutes, relating to outdoor advertising signs.

2. Sun City Shell, Inc., is a Florida corporation engaged in the business

of digging and selling oyster shells and fill dirt.

3. The activities of Respondent consists of mining the shells and dirt and

selling to buyers who transport the material in their own vehicles.

4. The business office of Sun City Shell is located one-half to one mile

south from the location of the trailer.

5. Respondent leases the property on which the mining is done from the

owner of the land where the trailer is located. Respondent has been authorized

to park tractors and trailers on this property (Exhibit 6).

6. There is a railroad running some one-tenth of a mile away from the

highway from the trailer and the mining operation takes place another one-tenth

of a mile from the railroad tracks.

7. The trailer here involved is a standard forty-foot, over-the-road

trailer normally towed by a tractor and is primarily used by Respondent for the

storage of tools used in the mining operation.

8. The trailer is fully operational and has a valid current registration

(Exhibit 7).

9. The trailer has "Sun City Shell" in large letters on both sides of the

trailer, but there are no arrows, address or telephone numbers, or other

identification on the trailer. No application has been made by Respondent for a

permit to operate and maintain an outdoor advertising sign in the location where

the trailer is parked. The lettering on the trailer is clearly visible from Old

US 41, which is a federal aid primary highway.

10. Section 106 of the Hillsborough County Code (Exhibit 8) requires the

name of the owner to be printed on motor vehicles used in the operation of the

business. Section 320.01(1), Florida Statutes, defines "motor vehicle" to mean,

inter alia, a trailer.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

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

12. The sole issue for determination is whether the trailer is a sign as

defined in Section 479.01(14), Florida Statutes. If it is a sign it is in

violation of Section 479.07, Florida Statutes, by reason of not having been

issued a permit.

13. Section 479.01(14) provides:

"Sign" means any combination of structure

and message in the form of an outdoor 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, 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. The term does not include

an official traffic control sign, official

marker, or specific information panel

erected, caused to be erected, or approved by

the department.

14. The critical portion of this definition is "designed, intended, or

used to advertise or inform." The lettering on the side of the trailer is

visible from the federal aid primary highway, but the trailer was not placed on

this property to advertise or inform. One who was unaware of the business of

Sun City Shell might well assume that was the name of a gasoline station selling

Sun Petroleum products. The "sign" contained no directions or address for the

operations office of the business; and actually served only to stow equipment

used in the mining operation as testified by the owner of the Respondent.

15. From the foregoing, it is concluded that the trailer visible from US

41 near Sun City in Hillsborough County is not a sign as defined in Section

479.01(14), Florida Statutes, and the notice of alleged violation should be

dismissed.

RECOMMENDATION

It is RECOMMENDED that a final order be entered dismissing the notice of

violation dated April 29, 1991, issued to Sun City Shell, Inc.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this __27__ day of

April 1992.

__________________________________

K. N. AYERS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this __27__ day of April 1992.

COPIES FURNISHED:

Charles C. Gardner, Esquire

Florida Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Maxwell G. Battle, Jr., Esquire

Post Office Box 1889

Dunedin, Florida 34697-1889

Ben G. Watts

Secretary

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Attn: Eleanor F. Turner

Thornton J. Williams

General Counsel

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.