STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1339T

)

LAKE BREEZE MOTEL, )

)

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 16 January 1979 at Bartow, Florida.

APPEARANCES

For Petitioner: John J. Rimes, III, Esquire

Department of Transportation Room 562, Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32304

For Respondent: Rudy Sickinger

Lake Breeze Motel

141 North East Lakeview Drive Sebring, Florida 33870

By Notice of Alleged Violation dated 16 May, 1978, the Department of Transportation (DOT, or Petitioner) seeks to have the sign owned by Lake Breeze Motel, Respondent, located on U.S. 27, 9.4 miles south of Polk County line, removed. As grounds therefor it is alleged that the sign has no valid permit and because the sign is on a federal-aid primary highway a permit for the sign cannot be issued at this location because it is within 500 feet of a validly permitted sign. One witness was called by petitioner, one witness was called by Respondent and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. The Lake Breeze Motel sign was erected in 1968 or before and was issued tags for the years including 1971. Up to and including the year 1971 Petitioner sent notices to the owner of the sign that renewal of the permit was required and Respondent remitted the appropriate fee for each of those years. No further notices that the permit had to be renewed was received from Petitioner in subsequent years.

2. In 1976 Respondent was told by another sign owner that the sign needed a current tag and he applied to Petitioner for a permit. This application was denied by Petitioner.

   
   

3. Respondent verbally (over the telephone) told Petitioner's sign representative that he desired a hearing on the denial but nothing further was forthcoming from Petitioner until the Notice of Alleged Violation dated 16 May 1978 was issued.

   
   

4. The Lake Breeze Motel sign is located on U.S. 27 some 9.4 miles south of the Polk County line. U.S. 27 is a federal-aid primary highway.

   
   

5. Approximately 400 feet from Respondent's sign, and on the same side of the highway is a sign owned by Highway Display which is currently permitted. The Highway Display sign was erected in 1972, some 4 years after Respondent's sign was initially permitted.

   
   

6. The Lake Breeze Motel is located approximately 6 miles off U.S. 27 and the sign is essential to provide motorists directions from U.S. 27 to the motel.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this hearing.

   
   

8. The Lake Breeze Motel sign was legally installed and was in compliance with the laws respecting signs through 1970, the last year Respondent received notification from Petitioner that the permit fee was due and payable.

   
   

9. Rule 14-10.06(1)(b)3 Florida Administrative Code provides that on federal-aid primary highways:

   
   

   No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction.

   
   

10. This rule was in effect in 1972 when the sign owned by Highway Display was erected and permitted. At the time the latter sign was erected Respondent's sign was existent but was not currently licensed due to the failure of Petitioner to notify Respondent that a current license was required.

    
    

11. Respondent owns a sign which was legal when erected and only became illegal when the Department issued a permit to Highway Display to erect a sign

    400 feet from Respondent's sign. This action by the Department appears to have been unauthorized and inadvertent. Regardless of the classification given to the issuance of the permit to Highway Display, the Department cannot now use this as grounds for requiring Respondent to remove its sign.

    
    

12. Furthermore, Petitioner failed to give notice to Respondent that a renewal of the permit was required after the notice sent for the year 1970. Failure to give such notices to the sign owner now precludes the Department from refusing to issue a current permit for this sign. Walker v. State of Florida Department of Transportation, Case No. II-103, Fla. 1st DCA op. filed January 4, 1979. It is therefore

RECOMMENDED that upon payment by Respondent of the correct fee for the years since 1970, the Respondent issue Lake Breeze Motel a permit for the current year and the Notice of Alleged Violation dated 16 May 1978 be dismissed.

Entered this 6th day of February, 1979.

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

Mr. Rudy Sickinger Lake Breeze Motel

141 North East Lakeview Drive Sebring, Florida 33870

Docket for Case No: 78-001339

Orders for Case No: 78-001339