STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION. )

)

Petitioner, )

)

vs. ) CASE NO. 75-1936T

)

JOHN and JUANITA DILL, )

)

Respondent. )

)

RECOMMENDED ORDER

After due notice, a public hearing was held before Delphene

1. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in the District Administrator's Office, Department of Transportation, Chipley, Florida, on February 6, 1976, at 10:00 a.m.

   
   

   APPEARANCES

   
   

   For Petitioner: John W. Scruggs, Jr., Esquire

   Staff Attorney

   Department of Transportation Chipley, Florida

   
   

   For Respondent: John C. Dill, Respondent

   Route 3, Box 172

   Wewahitchka, Florida 32465 ISSUE

   Whether the, Respondent is in violation of Sections 479.07(1)(2)(4)(6) and 479.11(1), Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   1. Objections to time involved in the Notice of Hearing was wavied by the parties. The parties were present.

      
      

   2. Respondent admitted that he had erected a sign near State Road 71, 1 8/10 miles south of the Calhoun County county line,

      with copy: Cypress Lodge - Fish Camp - Motel, a double faced sign. He admitted that he had no permits for 1974, 1975 nor for the current year. Respondent admitted that he had made no application to the Petitioner, Florida Department of Transportation, before employing a man to erect the sign.

      Respondent had no written lease agreement with the owners of the property upon which the sign is erected.

      
      

   3. The Petitioner claims a 33 foot right of way by maintenance and there is no controversy as to whether the State actually owns the 33 foot right of way it claims by maintenance although the State has no deed for said right of way.

      
      

   4. The subject sign is 12 feet from the nearest edge of the

      33 foot right of way claimed by the State. Said 12 feet is 3 feet less than the required 15 feet from the nearest edge of the right of way of State Road 71.

      
      

      CONCLUSIONS OF LAW

      
      

   5. Subject signs violate the setback requirements of Chapter 479, F.S.

RECOMMENDATION

Inasmuch as the violation is the difference between 12 feet and 15 feet and the reerection of subject signs would destroy a wooded area; and the secondary road is now cluttered with nonconforming signs; and it is the testimony of the owner that he intends to remove and redo the subject signs eventually but not this year; it is recommended that a permit be issued for subject signs upon payment of permit fees for the past years and upon a date certain after 1976 for removal of subject signs.

DONE and ORDERED this 13th day of May, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John W. Scruggs, Jr., Esquire Philip S. Bennett, Esquire Staff Attorney Office of Legal Operations Department of Transportation Department of Transportation Chipley, Florida Haydon Burns Building

Tallahassee, Florida 32304

John C. Dill, Respondent

Route 3, Box 172 Mr. J.E. Jordan Wewahitchka, Florida 32465 District Sign Coordinator

Department of Transportation Post Office Box 607,

US Highway 90

Chipley, Florida 32428

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

IN RE:

DEPARTMENT OF TRANSPORTATION, NOT FINAL UNTIL TIME EXPIRES

TO FILE FOR JUDICIAL REVIEW

Petitioner, AND DISPOSITION THEREOF IF FILED

vs. CASE NO. 75-1936T

JOHN AND JUANITA DILL,

Respondent.

/

FINAL ORDER

After due notice, a public hearing was held before the Honorable Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in the District Administrator's Office, Department of Transportation, Chipley, Florida, on February 6, 1976, at 10:00 a.m.

APPEARANCES:

John W. Scruggs, Jr., Esquire Staff Attorney

Department of Transportation Chipley, Florida

John C. Dill, Respondent Route 3, Box 172

Wewahitchka, Florida 32465

ISSUE: Whether the Respondent is in violation of Sections 479.07(1)(2)(4)(6) and 479.11(1), Florida Statutes.

As a result of such hearing, the Hearing Officer issued a Recommended Order setting forth her Findings of Fact, Conclusions of Law, and Recommendation as follows:

FINDINGS OF FACT

1. Objections to time involved in the Notice of Hearing was waived by the parties. The parties were present.

   
   

2. Respondent admitted that he had erected a sign near State Road 71, 1 and 8/10 miles south of the Calhoun County county line, with copy: Cypress Lodge - Fish Camp - Motel, a double-faced sign. He admitted that he had no permits for 1974, 1975 nor for the current year. Respondent admitted that he had made no application to the Petitioner, Florida Department of Transportation, before employing a man to erect the sign. Respondent had no written lease agreement with the owners of the property upon which the sign is erected.

   
   

3. The Petitioner claims a 33 foot right of way by maintenance and there is no controversy as to whether the State actually owns the 33 foot right of way it claims by maintenance although the State has no deed for said right of way.

   
   

4. The subject sign is 12 feet from the nearest edge of the

33 foot right of way claimed by the State. Said 12 feet is 3 feet less than the required 15 feet from the nearest edge of the right of way of State Road 71.

CONCLUSIONS OF LAW: Subject signs violate the setback requirements of Chapter 479, Florida Statutes.

RECOMMENDATION: Inasmuch as the violation is the difference between 12 feet and 15 feet and the reerection of subject signs would destroy a wooded area; and the secondary road is now cluttered with nonconforming signs'. and it is the testimony of the owner that he intends to remove and redo the subject signs eventually but not this year; it is recommended that a permit be issued for subject signs upon payment of permit fees for the past years and upon a date certain after 1976 for removal of subject signs.

The Department adopts the Findings of Fact and the Conclusions of Law of the Hearing Officer, but is unable to accept her Recommendation that the sign be permitted to remain in place. Once the determination is made that the subject sign violates the setback requirements of Chapter 479, Florida Statutes, it becomes the duty of the Department to follow the provisions of the law and order the Sign removed.

IT IS ORDERED, therefore, that the subject sign be removed thirty-five (35) days from the date of mailing a copy of this Order to Respondent, provided no petition for review of this Order has been filed with a court of competent jurisdiction, in which event thus Order will be stayed.

IT IS ORDERED this 18th day of January, 1977.

TOM WEBB, JR. SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA

Copies furnished:

Philip S. Bennett, Attorney Office of Legal Operations Department of Transportation Haydon Burns Building

John W. Scruggs, Attorney District III Office Department of Transportation Chipley, Florida

Delphene C. Strickland, Hearing Officer Division of Administrative Hearings Department of Administration

Room 530, Carlton Building Tallahassee, Florida 32304

John C. Dill Route 3, Box 172

Wewahitchka, Florida 32465

Mr. O. E. Black, Administrator Outdoor Advertising Section Right of Way Bureau

Department of Transportation Tallahassee, Florida

Docket for Case No: 75-001936

Orders for Case No: 75-001936