STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 78-2372T

)

DWAYNE DILMORE, )

)

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 case was presented on a Notice of Violation alleging that the subject sign was in violation of Sections 479.07 and 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: James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446 FINDINGS OF FACT

1. The Department presented evidence that its inspector discovered the subject sign located on U.S. 231, 0.3 mile south of Interstate 10. Inspection of the subject sign revealed that it did not have a permit affixed as required by Section 479.07, Florida Statutes, although its informative content was visible from the traveled way of the place known as U.S. 231. The distance from the sign to the pavement was measured and was, within inches, determined to be

   162 feet from the edge of the pavement to the sign. The sign was inspected in November of 1977, 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 ownership of the sign. The message on the sign advertised "Dilmore Meats;" however, no evidence was presented that the Respondent, Dwayne Dilmore, had any relationship with Dilmore Meats.

3. No substantial and competent evidence was presented that the place known as U.S. 231 is a highway within the definition of a federal aid primary highway. No substantial and competent evidence was presented that the place known as U.S. 231 is a highway as defined in 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 a sign when proceeding under Sections 479.07 and 479.11, Florida Statutes, to have a sign removed. This case was continued from February 13, 1979, to May 3, 1979, on Motion of the Department in order to permit the Department the opportunity to determine the ownership of the sign and prepare to present evidence of ownership at formal hearing. The Department failed to produce any substantial and competent evidence regarding ownership of the sign.

   
   

6. The Department failed to prove that the sign was located outside an incorporated city or town. Therefore, the Department had to prove the sign was located on a federal aid primary highway or interstate highway. It presented no evidence of the designation of the place known as U.S. 231 at the location of the sign as a federal aid primary highway and the approval of the Department's designation by appropriate federal authorities.

   
   

7. The Department failed to produce any substantial and competent evidence that the place known as U.S. 231 at the location of the subject sign was open to public vehicular traffic. Section 479.07 and Section 479.11 both use the term "highway" as is defined in Section 479.01(4), Florida Statutes. Section 479.01(4) provides as follows:

   
   

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

   
   

8. The Department has failed to prove three essential elements necessary to show a violation of the statutes and rules cited above.

RECOMMENDATION

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

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

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1979.

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

Docket for Case No: 78-002372

Orders for Case No: 78-002372