STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2178T

)

RICH'S TRUCK STOP, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Chipley, Florida, on February 13, 1979, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The Recommended Order in this cause was delayed to permit the parties the opportunity to file memoranda of law and proposed recommended orders in accordance with the Stipulation of the parties.

This case was presented upon a Notice of Violation served on Rich's Truck Stop, Post Office Box 158, Bonifay, Florida 32425, by the Department of Transportation alleging that a sign located one mile west of State Road 79 on Interstate 1.0 was in violation of Sections 479.07 and 479.11, Florida Statutes, and Rules 14-10.04 and 10.05, Florida Administrative Code.

The issue presented is whether the subject sign is in violation of the aforestated statutes and rules.

For Petitioner: Frank H. King, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

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

206 East Iowa Avenue Bonifay, Florida 32425

FINDINGS OF FACT

1. The sign in question is located one mile west of State Road 79 on Interstate 10. Said sign was photographed by the Department of Transportation sign inspector, who identified and introduced two photographs which were received as Exhibits #1 and #2. Said sign does not bear a permit of the type issued pursuant to Section 479.07, Florida Statutes. Said sign is not located within an incorporated city or town. Said sign bears copy which can be read from the traveled way of Interstate 10. Said sign is located 15.5 feet from the right-of-way of Interstate 10.

   
   

2. No substantial and competent evidence was introduced regarding the zoning of the area in which the sign is located or the ownership of the sign.

   CONCLUSIONS OF LAW

   
   

3. The Department of Transportation has charged that the sign in question violates sections 479.07 and 479.11, Florida Statutes, and Rules 14-10.04 and 10.05, Florida Administrative Code. The Department introduced substantial and competent evidence that the sign exists 15.5 feet from the right-of-way of Interstate 10, one mile west of State Road 79; that the sign bears copy which may be viewed from the traveled way of Interstate 10; and that the sign does not bear a permit affixed to it as required by Section 479.07, Florida Statutes. Section 479.07 requires every sign located outside an incorporated city or town to bear a permit issued by the Department of Transportation and that the site and construction of such a sign be approved by the Department of Transportation prior to issuance of such a permit. Rule 14-10.04(1), Florida Administrative Code, restates these requirements. The sign in question is in violation of Section 479.07, Florida Statutes, and Rule 14-10.04, Florida Administrative Code.

   
   

4. The Department of Transportation failed to introduce substantial and competent evidence that the sign was not subject to one of the exceptions in Section 479.111, Florida Statutes, by failing to prove the nature of the zoning applicable to the area in which the sign is located. Therefore, the Department has failed to prove that the sign is in violation of Section 479.11, Florida Statutes, and Rule 14-10.05, Florida Administrative Code.

   
   

5. The Department of' Transportation did not introduce any evidence regarding ownership of the sign. The Notice of Violation was served upon Rich's Truck Stop and, although the sign bears copy advertising Rich's, no evidence was introduced that Rich's constructed, owns, operates, or maintains the sign. Although Rich's uses the sign, there is no evidence that Rich's is the owner of the sign.

   
   

6. It is basic to due process requirements that proceedings under Section 120.57(1), Florida Statutes, provide notice to a party or parties whose substantial interests may be affected by the proposed agency action. In the instant case; the proposed action is removal of the sign. This directly affects the interest of the owner of the sign, but not necessary of the user of the sign. In the absence of evidence showing that Rich's is the owner of the sign, the action sought to be taken cannot be granted even though a violation of Section 479.07 is demonstrated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department of Transportation take no action regarding the subject sign.

DONE and ORDERED this 3rd day of April, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Russell A Cole, Jr., Esquire

206 East Iowa Avenue Bonifay, Florida 32425

Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

John M. McNatt, Jr., Esquire

1500 American Heritage Life Building Jacksonville, Florida 322022

Docket for Case No: 78-002178

Orders for Case No: 78-002178