STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 78-2371T

)

GENE SIMMS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 13, 1979, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented upon a Notice of Violation served on Gene Simms by the Department of Transportation alleging that two signs, one located 0.8 mile east of State Road 79 on Interstate 10 and the other located 0.8 mile west of State Road 79 on Interstate 10, violated the provisions of Chapter 479.07 and 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

The issue presented is whether the signs in question are in violation of Sections 479.07 and 479.11(1), Florida and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

APPEARANCES

For Petitioner: Frank King, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: James Moore, Esquire

Box 746

Niceville, Florida 32578

Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

FINDINGS OF FACT

1. Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant.

2. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case.

   
   

3. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10.

   
   

4. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms.

   
   

5. The notice of violation in this cause names Gene Simms as the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of Transportation charges that the subject signs are in violation of Sections 479.07 and 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

   
   

7. The referenced statutes set forth a uniform system of regulation of outdoor advertising which would require any outdoor advertising structure existing along any interstate or federal-aid primary system road to be approved and permitted prior to its construction. While there are exceptions to the siting of such signs along interstate highways and federal-aid primary highways, there is no exception to the requirement that such signs be permitted. The testimony is clear in the instant case that the two signs in question exist outside any incorporated municipality or town, are within 660 feet of the right- of-way of an interstate highway, and do not have a permit attached to them.

   
   

8. The testimony of Mr. Simms indicates that he has attempted to have the signs in question approved, and that they are not permitted and neither have they ever been permitted. The signs are in violation of Section 479.07, Florida Statutes, which specifically requires such permits.

   
   

9. No substantial and competent testimony was introduced as to the status of the zoning in the location of the signs. Because exceptions exist to the statutes and rules concerning the siting of signs along interstate highway right-of-ways within areas zoned commercial and industrial and unzoned areas used for industrial and commercial purposes, it is necessary for the Department to establish the zoning in the area in which the signs are located to prove a violation of Section 479.11, Florida Statutes. In the instant case no substantial and competent evidence capable of being considered by the Hearing Officer was introduced regarding the zoning of these areas, and violation of Section 479.11, supra, was not demonstrated.

10. It is inherent to due process and the requirements of Section 120.57, Florida Statutes, that the individual whose substantial interest is affected by proposed administrative action is entitled to notice of the action to be taken and the opportunity to respond. In the instant case, the Department of Transportation has served its notice of violation upon Gene Simms, individually. From the testimony it appears no investigation was conducted to determine the ownership of the signs in question. The evidence substantiates that the signs in question are owned by Simms Enterprises, Inc., of which corporation Gene Simms is President and owns 50 percent of the stock. Simms received notice in his individual capacity of the violations in this cause; however, the Department of Transportation has not served Simms Enterprises, Inc., or given notice to the corporation by service upon its agent for service of process or one of its corporate officers in his corporate capacity.

    
    

11. There are certain rules of procedure governing administrative proceedings. It is inherent that all parties to these proceedings follow these procedures. While it may seem that it is a technical failing for the Department of Transportation to service a Notice of Violation on Gene Simms in his individual capacity for the subject signs, the facts demonstrate that the Department of Transportation made no substantial effort to determine the ownership of the signs and that the owner of the signs, Simms Enterprises, Inc., is not a party to the instant proceedings.

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

DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Carlton Building

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979.

COPIES FURNISHED:

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

Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. Gene Simms

Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186

Bonifay, Florida 32425

Docket for Case No: 78-002371

Orders for Case No: 78-002371