STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2172T

)

LAKELAND HILTON INN, )

)

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 26 October 1982 at Bartow, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Respondent was not represented.

By Notice of Alleged Violation dated 13 September 1978, Petitioner seeks removal of Respondent's sign located on the I-4 25.03 miles east of U.S. 301. As grounds therefor it is alleged the sign is located within the interchange area in violation of Section 479.02, Florida Statutes, and is without a permit in violation of Section 479.07, Florida Statutes.

This case has had a history of delays and continuances. By Notice of Hearing dated November 22, 1978, it was initially scheduled for hearing on January 16, 1979. That hearing was continued until 11 April 1979; then until

July 31, 1981; and finally until October 26, 1982. These continuances were granted first to allow Respondent to pursue a rules change which, if successful, would have legalized the sign; and the hearing was later stayed by court order while Respondent challenged the constitutionality of provisions of Chapter 479, Florida Statutes.

At the hearing on October 26, 1982, Petitioner presented to the Hearing Officer the letter dated October 18, 1982, from counsel for Respondent, now in bankruptcy proceedings, in which Respondent contends that the filing of the Petition in Bankruptcy automatically stayed these proceedings pending the Reorganization of Respondent under the protection of the Bankruptcy Court. The hearing proceeded and Petitioner presented evidence in support of the alleged violations. The Petitioner called one witness, and two exhibits were admitted into evidence.

Respondent was advised of the action taken on October 26, 1982, and given an opportunity to show cause why these proceedings should be stayed pending Respondent's Reorganization. No response has been received from Respondent.

FINDINGS OF FACT

1. Respondent is the owner of a sign located alongside I-4 25.03 miles east of U.S. 301 (Exhibit 2).

   
   

2. This sign is located outside the city limits of Lakeland, Florida, and is within ten feet of the beginning of the transition of pavement going to the off ramp from the I-4.

   
   

3. When inspected in September, 1978, the sign did not have a permit affixed thereto and the records of Petitioner do not indicate this sign has ever been permitted. In 1978 the panels on this sign read "Hilton Inn."

   
   

4. When inspected on 25 October 1982, the photograph (Exhibit 1) was taken. This photo shows the panels are missing and the Hilton Inn message does not appear.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

   11 U.S.C.S. S362(b) provides in pertinent part:

   
   

   The filing of a petition under section 301, 302, or 303 of this

   title [11 U.S.C.S. 301, 302 or 303]

   does not operate as a stay

   
   

   (4) Under subsection (a)(1) of this section, of the commencement or continuation of an action or pro- ceeding by a governmental unit to enforce such governmental unit's police or regulatory power.

   
   

6. The Highway Beautification Act, Section 479, Florida Statutes, was enacted under the police powers of the state and regulates the erection and maintenance of outdoor advertising signs along the interstate and federal-aid primary highways. Accordingly, the filing of bankruptcy proceedings did not stay these proceedings brought to remove an outdoor advertising sign, in violation of that statute, located within 600 feet of the interstate system of highways.

   
   

7. Section 479.02, Florida Statutes, provides in part that it shall be the duty of the Department to regulate the size, lighting and spacing of signs in zoned and unzoned commercial and zone and unzoned industrial areas. Section 479.07, Florida Statutes, provides in part that no person shall construct, erect, operate or maintain an outdoor advertising sign outside any incorporated city without first obtaining a permit for such sign from the department.

   
   

8. Rule 14-10.06(1)(b)2.b., Florida Administrative Code, provides for interstate highways:

Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred

(500) feet of an interchange, inter- change at grade, or safety rest area.

Said five hundred (500) feet to be measured along the Interstate from the beginning or ending of pavement widening at the exit from or entrance to the main- travelled way.

From the foregoing it is concluded than the sign is located within 500 feet of the interchange at the I-4 and is outside the corporate limits of the City of Lakeland. It is further concluded that this sign does not have a valid permit and has never been issued a permit. It is

RECOMMENDED that Petitioner issue a Final Order directing Respondent to remove this sign and that if Respondent fails to do so within 30 days of the date of the Final Order, then Petitioner take the appropriate action to remove the sign.

ENTERED this 4th day of January, 1983, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1983.

COPIES FURNISHED:

Charles G. Gardner, Esquire Patrick D. Galvin, Administrator Department of Transportation Outdoor Advertising

Haydon Burns Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building

Tallahassee, Florida 32301

Paul A. Pappas, Secretary

Department of Transportation Andrew J. Nierenberg, Esquire Haydon Burns Building Ravin, Katchen & Greenberg Tallahassee, Florida 32301 101 Eisenhower Parkway

Roseland, New Jersey 07068

Docket for Case No: 78-002172

Orders for Case No: 78-002172