STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-473T

) TROPICAL ACRES STEAK HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-styled matter, after due notice to the parties, at Fort Lauderdale, Florida, on June 8, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Phillip Bennett, Esquire For Respondent: Regis Reasbeck, Esquire

6011 Rodman Street

Hollywood, Florida ISSUE PRESENTED

Respondent's alleged violation of Section 479.02, 479.07(1), and 479.111(2), Florida Statutes.

FINDING OF FACT

1. In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 9, 1975. The property deeded to Broward County was of a value of approximately $18,000.00. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks Seafood 1/2 Mile". (Testimony of Studiale, Composite Exhibit 1, 2, 4)

   
   

2. Investigation by Petitioner's representatives in the spring of 1976 revealed that no state permit had been applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected. (Testimony of Simokat).

3. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee." (Testimony of Salvatore Studiale, Exhibit 3).

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner alleges three violations of statutory provisions in the following manner:

   
   

   Section 479.02: "Improper Spacing"

   
   

   Section 479.07(1): "Permit required prior to the erection of Sign".

   
   

   Section 479.111(2): "Signs permitted in commercial and industrial zones only.

   
   

5. Section 479.02 reads as follows:

   
   

   "479.02 Enforcement of provisions by department. -- It shall be the function and duty of the department to:

   
   

   (2) Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial area;"

   
   

6. The above statutory provision merely established the duties of the Department of Transportation. It does not purport to impose requirements upon individuals with regard to spacing of signs or in any other respect. Accordingly, there can be no violation of this statutory subsection.

   
   

7. Section 479.07(1) provides that no outdoor advertising sign shall be erected outside any incorporated city or town without first obtaining a permit therefor from the Department of Transportation and paying an annual fee. Although no evidence was presented as to whether or not the sign in question is located outside any incorporated city or town, it is considered that there would be no violation of this provision in any event because Section 479.16(11) excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls within the exception stated above.

   
   

8. The final alleged violation is that of Section 479.111(2) which reads as follows:

   
   

   "47.111 Certain advertising signs permitted.

   -Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:

   (2) Signs in commercial and industrial zoned

   or commercial and industrial unzoned areas subject to agreement established by s.479.02."

9. In view of the above conclusion that Respondent's sign is excepted from the requirements of Chapter 479, no discussion is necessary concerning, this alleged violation.

RECOMMENDATION

That the allegations against Respondent be dismissed.

DONE and ENTERED this 13th day of July, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Phillip Bennett, Esquire Department of Transportation Room 562, Haydon Burns Building Tallahassee, Florida 32304

Regis Reasbeck, Esquire 6011 Rodman Street Hollywood, Florida

Docket for Case No: 76-000473

Orders for Case No: 76-000473