STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2369T

)

HENRY STEPHENS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

This case was presented on a Notice of Violation served on Henry Stephens that the subject sign violated Section 479.07 and Section 479.11, Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

APPEARANCES

For Petitioner: Frank H. King, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Charles M. Wynn, Esquire

Post Office Box 793 Marianna, Florida 32446

FINDINGS OF FACT

1. The Department presented evidence that its inspector discovered a sign located on State Road 71, 0.3 miles south of Interstate 10. Inspection revealed that the sign did not have a permit affixed as described in Section 479.07, Florida Statutes. The sign's informative content was visible from the traveled way of the place known as State Road 71. The distance from the sign to the pavement was measured and, to within inches, was determined to be 64 feet. The sign was inspected in July of 1978, and again on May 2, 1979. It was in essentially the same condition on both occasions.

   
   

2. The Department of Transportation presented no substantial and competent evidence regarding the ownership of the sign. The message on the sign advertised Stephen's Chevron; however, no evidence was presented that Henry Stephens, the Respondent, had any real relationship with Stephen's Chevron.

   
   

3. NO substantial and competent evidence was presented that the place known as State Road 71 was a highway within the definition of federal aid primary highway. No substantial and competent evidence was presented that the

   place known as State Road 71 was a highway as defined for the purposes of Chapter 479.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Department charges that the subject sign is in violation of Sections 479.07 and 479.11, Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

   
   

5. Due process requires that the Department give notice to the owner of the sign when proceeding under Sections 479.07 and 479.11, Florida Statutes, to have a sign removed. The Department failed to produce any substantial and competent evidence that the Respondent in this cause owned the sign.

   
   

6. Further, the Department failed to prove that the sign was located outside an incorporated city or town. Therefore, the Department had not prove that the sign was located on a federal primary aid highway or interstate highway. It presented no evidence that the place known as State Road 71 had been designated by the department as part of the federal aid primarily system and approved by the appropriate authorities of the federal government.

   
   

7. The Department failed to produce any evidence that the road at the place where the sign is located is open to public vehicular traffic. Section 479.01(4), Florida Statutes, defines "highway" for the purposes of Chapter 479 as follows:

   
   

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

   
   

8. The term "highway" is used in Section 479.07 and Section 479.11, Florida Statutes. By failing to prove that the place where the sign was located was open to public vehicular traffic, the Department has failed to prove that the roadway at that point is a highway for the purposes of Chapter 479.

   
   

9. The Department has failed to prove three essential elements necessary to show a violation of Sections 479.07 and 479.11, Florida Statutes, and Rules 14-10.04 and 14-10.5, Florida Administrative Code.

RECOMMENDATION

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

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1979.

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

Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446

Docket for Case No: 78-002369

Orders for Case No: 78-002369