Judges: DELPHENE C. STRICKLAND
Agency: Department of Transportation
Latest Update: Sep. 09, 1976
Summary: Whether the Respondent is in violation of ss 479.07(1); 479.07(4); 479.10; 479.11(1), F. S.Remove signs that are in violation of statute.
76-0049STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 76-049T
)
SPACE CENTER CAMPGROUND, )
)
Respondent. )
)
RECOMMENDED ORDER
After due notice, a public hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, at the Department of Transportation, District Office Two, South Marion Street, Lake City, Florida, on April 27, 1976 at 10:00 a.m.
APPEARANCES
For Petitioner: Philip S. Bennett, Esquire
Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
For Respondent: No appearance for the Respondent.
ISSUE
Whether the Respondent is in violation of ss 479.07(1); 479.07(4); 479.10; 479.11(1), F. S.
FINDINGS OF FACT
A notice of alleged violations was sent to Respondent dated December 19, 1975 and February 16, 1976 stating that pursuant to the applicable provisions of Chapter 479, s 335.13 and s 339.301, F.S., and pursuant to the provisions of s 120.57, F.S., the Respondent was notified that the sign structures owned by him were in violation of provisions of Chapter 479, s 335.13 and 339.301, F.S. The subject signs were identified as follows:
Copy - Space Center Campground
Location - 12.66 miles south of Bunnell Highway - US 1 Section 15 Flagler County
Copy - Space Center Campground Location - 3.94 miles north of SR 100
Highway - A1A Section 125 Flagler County
Copy - Space Center Campground Location - 12.12 miles north of SR 100
Highway - A1A Section 125 Flagler County
Copy - Campground
Location - 06.76 miles east Perry Jct. US 19 Highway - State Road 20 (US 27)
Prior to the hearing a letter was received from Respondent, Space Center Campground, through its secretary-treasurer, L. C. Morehead, Jr. requesting an administrative hearing.
The hearing was called to order after waiting for an appearance for Respondent for more than an hour. The witness for Petitioner testified that one sign had been removed except part of the pole which remained in the ground. The sign had evidently been removed prior to the hearing, as had been done prior to a previous hearing, and then after the hearing reerected.
The Hearing Officer further finds:
That the removal of a sign prior to a noticed hearing and the reerection of said sign after a hearing is an attempt to thwart the intent of the state and federal laws and regulations.
It is the duty of the Department of Transportation under Chapter 479,
F. S., Chapter 335, F. S., and Chapter 339, F.S., to enforce the outdoor advertising laws of the State of Florida and that the Respondent, Space Center Campground, has had a hearing, as provided in Chapter 120, F.S., and as provided in s 479.17 F.S., and s 335.13, F. S. The signs identified in Paragraph 1, supra, are in violation of the laws of Florida as charged in the Violation Notice.
CONCLUSIONS OF LAW
The Florida Department of Transportation is required to enforce the outdoor advertising laws of the state and federal government under the provisions of Chapter 479 and Chapter 335, F.S. Proper notice of hearing was given of the violations which are the subject of this hearing. No additional hearing would be required at this location for signs bearing the same or similar information advertising the same products or services or any other products or services prohibited under the outdoor advertising statutes of the state and federal government. The state and federal laws prohibit the removal and reerection of signs after notice of alleged violations are given and any signs reerected on or near the approximate location are subject to immediate removal under s 479.17, F.S. and s 335.13, F.S., without further hearing.
RECOMMENDATION
Enter an order requiring the removal of outdoor advertising signs erected at this location.
DONE and ORDERED this 30th day of June, 1976, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Mr. L. C. Morehead, Jr. Secretary-Treasurer Space Center Campground Route 2, Box 66-K7
Titusville, Florida 32780
Mr. O. E. Black, Administrator Outdoor Advertising Section
Florida Department of Transportation Haydon Burns Building
Tallahassee, Florida 32304
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 76-049T
SPACE CENTER CAMPGROUND,
Respondent.
/
FINAL ORDER
The record and evidence in this case has been fully and completely reviewed in light of written exceptions to the Recommended Order of the hearing officer filed by Space Center Campground.
The findings of facts as specifically delineated in the Recommended Order establishes an attempt by Space Center Campground "to thwart the intent of the state and federal laws and regulations pertaining to outdoor advertising by "removal of a sign prior to a noticed hearing and the re-erection of said sign after a hearing".
Such an attempt to thwart the spirit, intent and letter of outdoor advertising laws cannot and will not be tolerated. The hearing officer, in her conclusions of law, states that "(t)he state and federal laws prohibited the removal and re-erection of signs after notice of alleged violations are given and any signs re-erected on or near the approximate locations are subject to immediate removal under Section 479.17, Florida Statutes and Section 335.13, Florida Statutes, without further hearing." (Emphasis supplied.)
However, the Notice of Hearing as to the four (4) separate sign violations which frames as the issue: "Whether the Respondent (Space Center Campground) is in violation of Sections 479.07(1) and 479.11(1), Florida Statutes." is defective as to those signs located as follows:
Copy - Space Center Campground
Location - 12.66 miles south of Bunnell Highway - US 1 Section 15 Flagler County
Copy - Space Center Campground location - 3.94 miles north of SR 100
Highway - A1A Section 125 Flagler County
Copy - Space Center Campground Location - 12.12 miles north of SR 100
Highway - A1A Section 125 Flagler County
because the Notice of Hearing fails to reference the specific statutory provisions delineated in the Notice of Violation, to wit: Sections 479.07(4) and 479.10, Florida Statutes.
Therefore, having reviewed the record and evidence along with the Recommended Order and finding that said Order is correct in both fact and law as to that sign located 06.76 miles east of Perry, Jct. US 19, State Road 20 (US 27),
IT IS ORDERED that the Recommended Order of the hearing officer is adopted as modified above and the hearing on the Notice of Violation as to the remaining signs shall be reset upon proper notice thereof. The Department is hereby directed to remove forthwith and without further notice that sign removed and
re-erected in accordance with the findings of the hearing officer as to the properly noticed violation.
DONE AND ORDERED this 7th day of September, 1976.
TOM WEBB, JR SECRETARY
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA
Copies furnished to:
Ms. Delphene Strickland Hearing Officer
Division of Administrative Hearings Department of Administration
Room 530, Carlton Building Tallahassee, Florida 32304
Mr. L. C. Morehead, Jr. Secretary-Treasurer Space Center Campground Route 2, Box 66-K7
Titusville, Florida 32780
Mr. O. E. Black, Administrator Outdoor Advertising Section
Florida Department of Transportation Haydon Burns Building
Tallahassee, Florida 32304
Docket for Case No: 76-000049
Orders for Case No: 76-000049
