STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2302T

)

HENDERSON SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 3, 1979, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter arose upon a Notice of Violation filed by the Department of Transportation against Henderson Signs alleging that the subject signs were in violation of Section 479.07, Florida Statutes, Section 479.11(1), Florida Statutes, and Rules 12-10.04 and 12-10.05, Florida Administrative Code.

APPEARANCES

For Petitioner: Frank H. King, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: James P Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446 FINDINGS OF FACT

1. The parties stipulated that Henderson Signs maintained the subject signs at the following locations:

   
   

   1. 1.4 miles east of State Road 276 on 1-10;

   2. 1.0 to 1.1 miles east of State Road 71 on 1-10;

   3. 0.8 to 0.9 mile east of State Road 79 on 1-10.

   
   

2. The witness, Waddell, presented substantial and competent evidence that the road known as Interstate 10 at the places where the subject signs were located is a place designated by the Department of Transportation as part of the Interstate Highway System along a route approved by the appropriate authorities of the federal government.

   
   

3. The witness, Williams, presented substantial and competent evidence that the subject signs did not have permits of the type described in Section

   479.07, Florida Statutes, affixed to them on May 2, 1979, and at a date prior to August 3, 1978, and that the signs were substantially the same at the time of their second inspection as he had found them on his first inspection. The signs were visible from the designated traffic lanes of the place known as Interstate 10.

   
   

4. The Department of Transportation did not offer any evidence regarding whether, on the date of reinspection, May 2, 1979, the place known as Interstate

   10 was open to public vehicular traffic.

   
   

   CONCLUSIONS OF LAW

   
   

5. Because the definitions of "sign," "interstate highway," and "federal aid primary highway" all include the definition of "highway," it is necessary to read into each of these definitions and into Section 479.07 the statutory meaning given the term "highway" as used in Chapter 479, Florida Statutes. Section 479.01(4), Florida Statutes, defines "highway" as follows:

   
   

   (4) "Highway" means every way or place of whatever nature open to the use of the public for purposes of vehicular travel in this state.

   
   

6. By failing to produce evidence that a place known as Interstate 10 was open to the public for purposes of vehicular travel, or asking the Hearing Officer to officially note the fact that the place known as Interstate 10 was open to travel, the Department has failed to prove an essential element of the alleged violations of both Section 479.07 and Section 479.11, Florida Statutes, together with the rules cited.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the subject signs.

DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446

================================================================= SECRETARY'S ORDER OF REMAND

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 78-2302T

HENDERSON SIGNS,

Respondent.

/

SECRETARY'S ORDER OF REMAND

The Recommended Order entered in this cause advises that: "By failing to produce evidence that a place

known as Interstate 10 was open to the

public for purposes of vehicular travel,

or asking the Hearing Officer to officially note the fact that the place known as Inter- state 10 was open to travel, the Depart- ment has failed to prove an essential element of the alleged violations of both Section 479.01 and Section 479.11, Florida Statutes, together with the rules cited."

Accordingly, it has been recommended that the Department take no action against the subject signs.

Neither party filed Exceptions to the Recommended Order. Counsel for the Department has, however, filed a Motion to Supplement the Record with an affidavit of the Deputy Director of Road Operations that would answer the one outstanding and determinative question.

From the evidence presented, it was found that "the subject signs did not have permits of the type described in Section 479.07, Florida Statutes, affixed to them on May 2, 1979, and at a date prior to August 3, 1978." It does not appear that there was any lack of substantial competent evidence that the subject signs were in violation of Section 479.11, Florida Statutes (T-16) if the "place known as I-10" was, in fact, open to public vehicular traffic.

As Secretary of Florida's Department of Transportation, I am concerned with the agency's enforcement of the spirit as well as the letter of the outdoor advertising laws. I am advised that the alleged violations are deemed

continuing in nature, and the Department could issue another notice of violation for the offending sign. However, from those facts already determined and reported to me in the Recommended Order, it would seem that substantial justice would not be done to require all of the previous testimony, together with the witnesses' and parties' time to resolve the one fact that appears to be determinative. Additionally, in my particular position as Secretary, I am readily aware of the answer to the question that concerned the Hearing Officer. Since this question was not an issue for which testimony was elicited by either side but which is the only remaining undetermined factor, I wish to have the Hearing Officer make a determination of the ultimate question. I am also advised that there is no provision in Chapter 120, Florida Statutes, that deals directly with my right to such a remand order but, to me, it seems proper. In order to give the sign company an opportunity to present any controverting evidence on the question, it is hereby ordered:

1. Petitioner's Motion to Supplement the Record be and the same is hereby denied; and

   
   

2. This cause be and the same is hereby remanded to the Hearing Officer to permit both parties to introduce evidence as to whether or not that portion of Interstate 10, adjacent to which the structures are located, was open to the use of the general public for purposes of vehicular travel at the time of the alleged violation; and

   
   

3. To return to me a recommendation on the ultimate question of violation vel non to end the controversy once and for all.

ORDERED this 22nd day of August, 1979.

WILLIAM N. ROSE, SECRETARY

State of Florida

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

(904) 488-6212

COPIES FURNISHED:

Frank King, Esquire

James P. Appleman, Esquire (Certified Mail) Stephen F. Dean, Hearing Officer

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

DOAH ORDER DENYING REMAND

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) (CASE NO. 78-2368T) *

)

HENDERSON SIGNS, )

)

Respondent. )

)

ORDER DENYING REMAND

The Order of the Agency Head dated August 22, 1979, remanded this cause to the Hearing Officer for the purpose of reopening the record and taking testimony on whether the place known as I-10 is open to vehicular traffic, making additional findings of fact on that issue, and making a new recommendation regarding this case.

Said Order of Remand recites that the agency had in the first instance failed to prove that 1-10 was open to vehicular traffic and therefore was a highway for the purposes of Chapter 479, Florida Statutes. The Order reflects that no statutory authority exists for remand. Further, the Order reflects that the agency filed a written motion after hearing to supplement the record, but does not reflect that the agency orally moved for leave to supplement the record at hearing. The Order of Remand, while denying the Motion to Supplement, does not reflect that the Hearing Officer had denied the agency's oral motion specifically because this cause had been continued over the objections of Respondent to permit the agency added time to prepare its case in the first instance.

It is as inherent in the administrative process as it is in the judicial process that eventually proceedings must come to an end. It works a substantial and unfair hardship on a Respondent to permit the agency by trial and error to perfect piecemeal its case against a Respondent. It is a denial of due process for the agency to proceed in such a manner.

If the agency is of the view that the offense is of a continuing nature, the solution is to file a new notice of violation, not to reopen the record in the instant case for the purpose of permitting the agency to perfect its case.

Therefore, this matter is referred back to the Agency Head for entry of a final order based upon the findings of fact heretofore entered on the record as it was presented at the hearing.

DONE and ORDERED this 10th day of September, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446

================================================================= AMENDED DOAH ORDER DENYING REMAND *

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2302T

)

HENDERSON SIGNS, )

)

Respondent. )

)

AMENDED ORDER DENYING REMAND

The Order Denying Remand previously entered in Department of Transportation vs. Henderson Signs, Division of Administrative Hearings Case No. 70-2368T, was in error as to the case number. No remand was ordered in this case.

Said Order is hereby amended to reflect entry in Department of Transportation vs. Henderson Signs, Division of Administrative Hearings Case NO. 78-2302T, the case remanded. This amendment does not alter or change the contents of the original Order.

DONE and ORDERED this 25th day of September, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

James P. Appleman, Esquire

206 Market Street Post Office Box 305

Marianna, Florida 32446

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

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

FLORIDA DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 78-2302T

HENDERSON SIGNS,

Respondent.

/

FINAL ORDER HISTORY OF CASE

A hearing in this case was initially held May 3, 1979, before a Heading Officer assigned by the Division of Administrative Hearings. The purpose of the Hearing was a Notice of Violation filed by the Department against Henderson Signs alleging that subject signs were in violation of Sections 479.07 and

479.11(1) Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

The Hearing Officer issued a Recommended Order on June 4, 1979, concluding that no action be taken against the subject signs because the Department did not introduce evidence whether Interstate 10 was open to public vehicular traffic at the time of the alleged violation, indicating this was an essential element.

By permitting the Hearing to conclude and then disclosing in the Recommended Order that the fact of whether ". . . the place known as Interstate 10 was open to travel . . .", was " . . an essential element of the alleged violations of both Sections 479.07 arid 479.11, Florida Statutes . .

." and in the absence of said factual disclosure recommended no action be taken against the subject signs constitutes an unawareness of a Hearing Officer's duties and responsibilities as a "finder of the facts," pursuant to Chapter 20, Florida Statutes.

As noted in National Labor Relations Board v. Franks Bros. Co., 137 F.2d 991, citing Bethlehem Steel Co. v. National Labor Relations Board, 74 App. D.C. 52, 120 F.2d 641, 652:

It is the function of an examiner, just

as it is the recognized function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made.

If an essential fact was missing, then properly a complete Recommended Order could not be issued until the Hearing Officer had knowledge of the fact, the fact was confronted and questioned by opposing counsel followed by the Hearing Officer applying the law to the fact and arriving at a conclusion.

The case in question was remanded to the Hearing Officer on August 22, 1979, for the purpose of hearing the essential fact, with all parties present

,and providing the Agency with a Recommended Order affirming or denying the violations based on the essential fact.

The Hearing Officer issued an Order denying the remand on September 10, 1979, and issued am amended Order denying remand to correct a case number, on September 25, 1979.

A petition for writ of certiorari (review) was filed by the Department to quash the Order of the Hearing Officer denying the Agency's Order of Remand, which was denied by the First District Court of Appeal on March 5, 1980.

Because remand was denied by the Hearing Officer and review of remand denied by the First District Court of Appeal, it was necessary for the Agency Head to conduct a supplementary Hearing to bear the essential fact as to whether or not the highway was opened to the public for vehicular traffic at the time of the alleged violation.

A Notice of a Supplementary Hearing was issued on April 4, 1980, and a supplementary Hearing in the instant case was conducted by the Agency Head on April 21, 1980.

CONSIDERATION OF OBJECTIONS

The record and evidence in this case has been reviewed and objection to Notice of Hearing filed by Henderson Signs on April 9, 1980, considered as follows:

1. No authority for Secretary of the Department to conduct a supplementary Hearing.

   Section 120.57(1)(a), Florida Statutes, provides: A Hearing Officer assigned by the

   Division (of Hearing Examiners) shall

   conduct all Hearings under this sub- section, except for:

   1. Hearings before Agency Heads.

      
      

      In the instant case, the Agency Head could conduct the Hearing or request the assignment of a Hearing Officer to hear the case. A Hearing Officer was requested who conducted a Hearing, however said Hearing Officer failed to find an essential fact and issued a Recommended Order based on an incomplete record. The Hearing Officer denied a remand of the case. Then the Agency Head proceeded with a Notice of Supplementary Hearing for the purpose of finding the essential fact on which to complete the record as foundation for the Final Order.

      Sections 120.57 and 120.59, Florida Statutes, vests responsibility to issue the Final Order with the Agency Head and Section 23.05(1)(a), Florida Statutes, directs the Agency Head to conduct the affairs of the Agency and discharge responsibilities assigned thereto. Section 479.20, Florida Statutes, charges the Department of Transportation with enforcing the outdoor advertising law, Chapter 479, Florida Statutes. Although a Supplementary Hearing is rare because most Hearing records are complete, when necessary, the Agency Head must conduct same pursuant to the authority discussed above to fulfill percent his duty.

      
      

2. The Supplementary Hearing was held for the purpose of circumventing the decision of its Hearing Examiner in view of the Recommended Order and denial of certiorari by the First District Court of Appeal.

   
   

   As discussed above, the Agency Head is charged with the responsibility of issuing a Final Order, based on the record, with recommendations from the Hearing Officer. Because the Hearing Officer did complete his responsibilities as a "finder of facts", the Agency Head was required to complete the record by Supplementary Hearing so that a Final Order could be issued on an adequate foundation of fact. A recommendation Of no action because of a factual deficiency constitutes an interim recommendation requiring additional input.

   Completing a record does not constitute circumventing the record. A denial of certiorari is a refusal to review the issues brought before the Court which were authority of the Agency to remand and whether a Hearing Officer may refuse a remand. It is not a ruling on the merits of the case as noted in Allen v. City of Miami, 147 So.2d 567 (3rd DCA. 1962).

   
   

   The petition for rehearing is denied, but neither the denial of this petition

   nor the dismissal of the original petition for certiorari are to be considered as determinative of the question involved.

   Neither is the dismissal of the petition for certiorari to be considered as estab-

   lishing the law of the case nor approving the actions of the trial judge in striking the claim for punitive damages against the Respondent City.

   
   

3. Venue of the Supplementary Hearing is incorrect because neither the cause of action nor the structure is located in Tallahassee.

Section 120.57(1)(b)3, Florida Statutes, provides the Agency shall ". . . with the concurrence of the Division (of Hearing Examiners) set the time, date and place of the Hearing. . ." Since the Hearing Officer did not choose to rehear or conduct a Supplementary Hearing, responsibility for the place of the Hearing rested solely with the Agency Head. Because the Hearing was supplementary in nature, concerning a limited factual situation as to whether a portion of the Interstate 10 was open to public vehicular traffic, with only witnesses from the Department testifying, Tallahassee, Headquarters of the Department, was not improper venue for said Hearing. Furthermore, the Hearing was the culmination of a Request for Hearing filed in Tallahassee from a Notice of Violation issued in Tallahassee.

FINDINGS OF FACT

1. The findings of fact contained in the Hearing Officer's Recommended Order are supported by the evidence except the numerical designation for State Road "79" which should be "71", as noted on pages 5, 6, and 37 of the May 3, 1979, Hearing transcript, and the August 3, 1978 violation notice. As corrected, the findings of fact are attached hereto and made a part hereof, and supplemented by the following additional fact:

   
   

   As presented by exhibits and testimony

   by the Deputy District Engineer at the Sup- plementary Hearing on April 21, 1980, the section of Interstate 10, where the signs in question were noticed for violation, was open to traffic on October 14, 1977.

   
   

   CONCLUSIONS OF LAW

   
   

2. Section 479.07, Florida Statutes, and Rule 14-10.04, Florida Administrative Code, requires permitting of signs, by the Department, when located along a Federal Aid Primary or Interstate Highway. Section 479.11(1), Florida Statutes, and Rule 14-10.05, Florida Administrative Code, provides:

   
   

   No advertising, advertising

   sign or advertising structure shall be constructed, erected, used, operated or maintained: (1) within 660 feet of the rearest edge of the right-of-way of all portions of the interstate system .

   except as provided in Section 479.11, Florida Statutes. (Directional or official signs

   or signs in commercial or industrial zoned areas.)

   
   

3. The record shows the following signs were erected during the month of June, 1978 and are located the following distances along and from Interstate 10

which was open to public vehicular traffic on said date in Jackson County, Florida.

1.4 miles east of State Road 276 along

1-10, 128 feet from the right edge of the pavement of the eastbound lane.

1.0 to 1.1 miles east of State Road 71 along 1-10, 140 feet from the right edge of the pavement of the westbound lane.

0.8 to 0.9 miles east of State Road 71 along 1-10, 140 feel from the right edge of the pavement of the westbound lane.

The above Signs are not permitted by the Department and are located within 660 feet of an interstate highway and are in violation of the above-mentioned statutes and rules.

ORDER

The Recommended Order of the Hearing Officer in this cause has been reviewed and the issues, findings of fact as corrected and Supplemented, are adopted, attached hereto and made a part hereof. The conclusions of law and recommendation based on an incomplete record are rejected and, it is therefore

ORDERED: Subject signs, in violation of cited Florida Statutes and Rules of Florida Administrative Code, are hereby declared to be a public and private nuisance and shall be forthwith removed.

DONE AND ORDERED this 27th day of May, 1980.

WILLIAM N. ROSE SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

COPIES FURNISHED:

Stephen F. Dean, Esquire James P. Appleman, Esquire Hearing Officer Attorney for Respondent Division of Administrative 206 Market Street Headings Post Office Box 385

101 Collins Building Marianna, Florida 32446 Tallahassee, Florida 32301

Dave Leighow, Administrator Charles G. Gardner, Esquire

Outdoor Advertising Section Florida Department of Transportation Florida Department Of Haydon Burns Building

Transportation Tallahassee, Florida 32301 Haydon Burns Building

Tallahassee, Florida 32301

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

SECOND AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 78-2302T

DCA Docket No. WW-15

HENDERSON SIGNS,

Respondent.

/

FINAL ORDER

The District Court of Appeal of Florida, First District, having issued its Mandate commanding that further proceedings in this cause be had in accordance with the May 14, 1981, opinion of the Court, it is accordingly,

ORDERED that the Recommended Order of the Hearing Officer entered June 4, 1979, copy attached, be and is hereby adopted as the Final Order of this Agency.

DONE AND ORDERED this 8th day of June, 1981.

JACOB D. VARN SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

COPIES FURNISHED:

Stephen F. Dean, Esquire Charles M. Wynn, Esquire

Hearing Officer Post Office Box 793 Division of Administrative Marianna, Florida 32446 Hearings

Oakland Building Frank H. King, Esquire

2009 Apalachee Parkway Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building

Tallahassee, Florida 32301

Patrick D. Galvin, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 78-002302

Orders for Case No: 78-002302