STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1605T

)

RICH OIL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above styled cause in Room 104, Collins Building at 11:00 a.m. in Tallahassee, Florida before Delphene C. Strickland, assigned Hearing Officer of the Division Of Administrative Hearings.

APPEARANCES

For Petitioner: John W. Scruggs, Esquire

Department of Transportation Chipley, Florida 32425

For Respondent: Russell A. Cole, Jr., Esquire

123 North Oklahoma Street Bonifay, Florida 32425

ISSUE

Whether three signs of Respondent are in violation of the Federal and State laws, rules and regulations by violating the set-back requirements and the requirements for state permit.

FINDINGS OF FACT

1. Respondent was issued a thirty (30) day Violation Notice by Petitioner for a sign located .5 of a mile west of State Road 79 on the south side of I-10 approximately twenty (20) feet from the fence on the outer edge of the right-of- way of I-10. The sign advertised gas, oil, food, camping, road service, and CEO radio shop and is owned by Respondent Rich Oil Company, Bonifay, Florida, a business in operation about .9 of a Mile from the sign. The violations were listed as improper set-back and no permit.

   
   

2. A thirty (30) day violation notice was issued to the Respondent by Petitioner on a sign located .6 of a mile east of State Road 79 on the north side of I-10 approximately twenty (20) feet from the fence located on the outer edge of the right-of-way. The products advertised were gas, oil, food, camping, road services, CB radio shop of the business operation of Respondent which business was located about .9 of a mile from the sign. The violations were listed as improper set-back and no permit.

3. A thirty (30) day violation notice was issued to Respondent by Petitioner for a sign located on the southeast corner of St. Johns Road and State Road 79 located six (6) to twelve (12) feet from the outer edge of the right-of-way of State Road 79 advertising the products of Respondent: gas, oil, food, camping, road service, CB radio shop. The business was Operated about one hundred and eighty (180) feet from the sign. The violation was listed as improper set-back and no permit.

   
   

4. No state permits were applied for or granted for any of the three subject signs. The signs were set back from the federal aid highway as indicated on the Violation Notices.

   
   

5. The signs referred to in (1) and (2) above located east and west of the intersection of State Road 79 and I-10 were placed there by Respondent who stated that they were essential for his business and that the business would be diminished if the signs were removed. The sign described in (3) above on State Road 79 is shown by photograph to have a trailer nearby with a sign on it. Said sign on the trailer is not a subject of this hearing.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 479.11(1)(2), Florida Statutes, Certain outdoor advertising prohibited.- provides:

   
   

   "No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   1. Within 660 feet of the nearest edge of the right-of-way way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111, or within 15 feet of the outside boundary of any other federal or state highway or within 100 feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, or railroad intersection outside the limits of any incorporated city or town.

   2. Beyond 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary systems outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system, unless it is of a class or type per- mitted in subsection 479.111(1) or subsections 479.16(1) or (3)."

      
      

7. The two signs described in Findings of Fact 1 and 2 herein located east and west of the intersection of State Road 79 and Interstate 10 are in violation of the above statute for the reason that they are erected along the right-of-way of an interstate highway within six hundred and sixty (666) feet of the nearest edge of the highway and also are in a rural area and can be seen from a Federal Aid Highway.

   
   

8. The third sign described in (3) above located along State Road 79 is in violation of the fifteen (15) foot set-back and also is in violation of the spacing requirements of Chapter 479, Florida Statutes. It is located in an area

which is excepted by Section 479.111(2) and would be in compliance except that the set-back is nearer than fifteen (15) feet from the nearest edge of the right-of-way of State Road 79 and it has no state permit.

RECOMMENDATION

Remove the signs that are located east and west of the intersection of State Road 79 along the right-of-way of I-10 and described in Findings of Fact

(1) and (2) herein. Remove the sign located along State Road 79 described in Findings of Fact (3) herein unless the Respondent removes said sign and relocates it within fifteen (15) feet of the nearest edge of the right-of-way after obtaining a state permit.

DONE and ORDERED this 4th day of February, 1977 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Russell A. Cole, Jr., Esquire

123 N. Oklahoma Street Bonifay, Florida 32425

John W. Scruggs, Esquire Department of Transportation Chipley, Florida 32425

George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. Glen E. Rich Rich Oil Company Post Office Box 158

Bonifay, Florida 32425

Mr. J. E. Jordan

District Sign Coordinator Department of Transportation Post Office Box 607

Chipley, Florida 32428

Mr. O. E. Black Administrator Outdoor Advertising

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

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

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

FLORIDA DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 76-1605T

RICH OIL COMPANY,

Respondent.

/

FINAL ORDER

The record and evidence in this case having been fully and completely reviewed along with the recommended order of the Hearing Officer herein, and the requested modification of the facts made by the Respondent, it is Ordered as follow:

1. The findings of fact made by Hearing Officer are correct.

   
   

2. The Department of Transportation is proscribed by law from modification of the facts as requested by the Respondent.

   
   

3. The conclusions of law made by the Hearing Officer herein are correct. The recommendation of the Hearing Officer is adopted but modified as to the findings of fact three (3) of the recommended order to require the Respondent to relocate said sign to a distance of at least fifteen (15) feet from the nearest edge or right-of-way after obtaining state permit there for.

DONE AND ORDERED this 8th day of March, 1977, in Tallahassee, Florida.

TOM WEBB, JR. SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32304

Copies furnished:

Russell A. Cole John W. Scruggs

Docket for Case No: 76-001605

Orders for Case No: 76-001605