STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1902T

)

GLEN'S CAR WASH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice at the Right of Way Office Conference Room, Department of Transportation, 1317 N.E. Fourth Avenue, Fort Lauderdale, Florida, at 3:00 p.m. on January 13, 1976, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Theodore P. Mavrick, Esquire

2601 East Oakland Park Boulevard, Suite 205 Fort Lauderdale, Florida 33306

STATEMENT OF CASE

The cause arose on the Administrative Complaint and Notice of the Petitioner to the Respondent alleging violation of Section 479.11(2), Florida Statutes, and the Respondent's Petition for formal hearing. The matter was referred to the Division of Administrative Hearings for hearing by Petitioner.

ISSUE

Whether Respondent is in violation of Subsection 479.11(2), Florida Statutes, as alleged in the Administrative Complaint.

FINDINGS OF FACT

1. James Hackett, Outdoor Advertising Inspector, was called and testified that he had inspected the subject sign which was located on the site of Glen's Car Wash, which is located at 1819 Federal Highway (U.S. 1) in Broward County within a municipality.

   
   

2. The witness testified that he had not measured the distance from the sign to the edge of the right of way and did not know for certain the location

   of the boundaries of said right of way. He testified that the subject sign as within two to three feet of the sidewalk which he assumed to he the boundary of the right of way.

   
   

3. Dorlen LaBounty, a Department of Transportation employee, was called and identified a photograph which he had taken of the subject sign, which photograph was marked as Exhibit 1 and received into evidence. Exhibit 1 was taken by LaBounty from the west side of Federal Highway south of the site of Glen's Car wash looking north. Having examined Exhibit 1, the Hearing Officer cannot determine the location of the street (U.S. L or Federal Highway) relative to the sign because the picture does not show the street, sidewalk, and base of the sign.

   
   

4. The witness Hackett 20 response to she Hearing Officer's direction did prepare a rough diagram which indicated the location of the sign relative to the Glen's Car Wash site and the intersection. This diagram was rough and was not to scale, and was received solely to clarify the location of the sign with regard to Glen's Car Wash.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 479.11(2), F.S., deals with prohibited signs within 100 feet of the state right of way. Although it is ironic, the Petitioner has failed to prove that the subject sign is within 100 feet of the state right of way in a municipality on one of the most heavily travelled streets in this state. Even if he had been requested, the Hearing Officer could not officially note the boundaries of the right of way of roads, and the evidence does not prove the sign to he within 100 feet of the right of way.

RECOMMENDATION

The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends that the charges be dropped.

DONE and ORDERED this 16th day of February, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Theodore P. Mavrick, Esquire Suite 205

2601 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Docket for Case No: 75-001902

Orders for Case No: 75-001902