STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1058T

)

BUCKHEAD RIDGE MARINA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 12 July, 1978 at Bartow, Florida.

APPEARANCES

For Petitioner: John J. Rimes, III, Esquire

Room 562, Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32304 For Respondent: No representative was present.

By Notice of Violation dated 22 September 1977 the Department of Transportation (DOT), Petitioner, seeks to require removal of two signs owned by Buckhead Ridge Marina, Respondent, located on State Road 78, 25.81 and 27.92 miles, respectively, north of U.S. 27. As grounds therefor it is alleged that these signs do not have permits and cannot now be issued permits.

Following the hearing the parties, by and through their attorneys, stipulated that the Recommended Order in this case not be issued prior to September 15, 1978 to allow Respondent until 1 September 1978 an opportunity to submit any additional facts other than those presented at the hearing and contained in the transcript. No additional facts have been presented by Respondent. At the hearing one witness was called by Petitioner and five exhibits were admitted into evidence.

FINDINGS OF FACT

1. In 1976 SR 78 in Glades County was changed to a federally approved primary road. At this time Respondent's signs were in existence but had never been permitted by Petitioner. Had these signs been issued a permit and thereby legal at the time the road became a federally approved road, the Respondent could have continued to obtain annual permits for these signs.

   
   

2. The area along SR 78 is zoned agricultural and residential. There have been no areas along SR 78 zoned industrial and commercial.

   CONCLUSIONS OF LAW

   
   

3. Section 479.11 Florida Statutes provides in pertinent part:

   
   

   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 of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111. . .

      
      

4. Section 479.111 Florida Statutes provides in pertinent part:

   
   

   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. . .

   
   

5. Since the signs in question are not located in an area zoned commercial and industrial these signs are not eligible to be issued a permit. By virtue of never having been issued a permit prior to the time SR 78 was changed to a federal-aid primary road, these signs were not legally erected and acquired no grandfather rights.

   
   

6. From the foregoing it is concluded that Respondent's signs located on SR 78, 25.81 and 27.92 miles, respectively, north of U.S. 27 are located in an area zoned other than commercial and industrial and therefore may not be issued a permit. It is further concluded that these signs were not permitted prior to 1976 when SR 78 was changed to a federal-aid primary road and therefore have never been legally maintained. It is therefore

RECOMMENDED that Respondent's signs on SR 78 located 25.81 and 27.92 miles north of U.S. 27, respectively, be removed.

DONE and ENTERED this 15th day of September, 1978.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

John J. Rimes, III, Esquire Department of Transportation Room 562, Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32304

Herbert C. Gibson, Esquire Gibson, Gibson and Sheehan Post Office Box 1629

209 South Olive Avenue

West Palm Beach, Florida 33402

Docket for Case No: 78-001058

Orders for Case No: 78-001058