STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-404T

)

KOA KAMPGROUND, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, a hearing was held in accordance with the Administrative Procedure Act, Florida Statutes, Chapter 120, on May 15, 1975, in Room 476, Haydon Burns Building, Tallahassee, Florida, before Francis Bayley, Hearing Examiner.

APPEARANCES

For Petitioner: Jay Hendrickson, Esquire

Department of Transportation ISSUES

(1) Whether Respondent's sign is located on a state maintained right-of-way and therefore in violation of Subsection 479.11(5), Florida Statutes. (2) whether Respondent's signs are in violation of the setback requirements of Subsection 479.11(1). (3) Whether Respondent's signs are in violation of the permit requirement of Subsection 479.07(1).

FINDINGS OF FACT

1. The Respondent owns two signs located along U.S. Highway 98 in Franklin County, Florida. The first sign is sixth-tenths of a mile east of the junction of State Road 370. The second sign is eight-tenths of a mile west of the junction of State Road 370.

   
   

2. The first sign is approximately eleven feet by five feet in size. One half of the sign is located on the state maintained right-of-way. This sign did not bear a current permit tag as of May 12, 1975. This sign could not be permitted because the Department would not issue a permit for a sign it believed to be erected illegally.

   
   

3. The second sign does not bear a current permit tag either. This sign stands approximately five feet from the right-of-way line. U.S. Highway 98 in the vicinity of this sign is a Federal-Aid Primary Highway. Again, because the Department believes that this sign is illegally erected it has taken the position that no permit tag could be issued even if one were applied for. This sign was erected by a private sign company for the benefit of the Respondent and

   with the express permission of the landowner. Representatives of the Respondent did not discover that the location was illegal until the sign was in place.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Department has alleged that the first sign is both in violation of the setback requirement of Subsection 479.11(1) and in violation of Subsection 479.11(5) by being on the right-of-way. The two Subsections address themselves to different prohibited locations for signs adjacent to highways. A plain reading of Subsection 479.11(1) indicates that it is intended to cover situations in which the sign is off of the right-of-way but improperly setback for that category of highway. Having found in this instance that the sign is on the right-of-way it is simply redundant to consider whether it is also improperly setback. The first sign is not in violation of Subsection 479.11(1).

   
   

5. The Respondent's first sign is in violation of Subsection 479.11(5) by being located on the state right-of-way and in violation of Subsection 479.07(1) by not having the required permit.

   
   

6. Subsection 479.11(1) prohibits the erection of a sign less than 660 feet from the right-of-way line of a Federal-Aid Primary Highway. Respondent's second sign is in clear violation by being only five feet from the right-of-way. This sign is also in violation of Subsection 479.07(1) by not having the required permit.

   
   

7. The Legislature has declared that signs maintained in violation of any provisions of Chapter 479, such as the Respondent's signs, are a public nuisance. Section 479.17, Florida Statutes, 1973, directs the Department to remove such offending signs after the owner has been given thirty days written notice and an opportunity to present evidence as to why his sign is not in violation. Furthermore, Subsection 479.07(4), provides that a sign maintained without a current permit tag is subject to removal by the Department.

RECOMMENDED ORDER: The Department shall remove the signs thirty (30) days after the Final Order is entered unless the Respondent removes them before that time expires.

FRANCIS BAYLEY

Hearing Examiner

Date: JUNE 13, 1975

Docket for Case No: 75-000404

Orders for Case No: 75-000404