STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1424T

)

JOPEP HOMES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on August 14, 1979, in Lake City, Florida.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire and

V. L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, Room 562 605 Suwannee Street Tallahassee, Florida 32304

For Respondent: None

On or about June 13, 1979, Petitioner, Florida Department of Transportation ("DOT") issued an Alleged Violation of Chapter 479 and Section 335.13 and 339.301, Florida Statutes and Notice to Show Cause ("Notice") to Jopep Homes, Inc. ("Respondent"). In the notice, DOT alleged that Respondent owned a sign located on State Road 13, 1.8 miles north of the Duval-St. Johns line, which had been erected without first obtaining a state permit, and had, in addition, been built in violation of applicable spacing requirements.

Thereafter, by letter dated June 25, 1979, Joseph M. Pepe, President of Jopep Homes, Inc., requested a formal hearing pursuant to the provisions of 120.57(1), Florida Statutes, concerning the allegations contained in the notice. By letter dated July 2, 1979, DOT, pursuant to the provisions of 120.57(1)(b)(3), Florida Statutes, requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct a hearing in this cause. The final hearing was scheduled for August 14, 1979 by Amended Notice of Hearing dated July 27, 1979.

At the final hearing, DOT called Harry J. Bender and Jack L. Foster as its witnesses. DOT offered Petitioner's Exhibit 1 through 7, each of which was received into evidence. Respondent made no appearance, called no witnesses, and offered no exhibits into evidence.

FINDINGS OF FACT

1. On May 8, 1979, a representative of DOT observed a sign located on State Road 13, 1.8 miles north of the Duval-St. Johns line in Duval County, Florida. State Road 13 is a federal aid primary highway. The sign in question bore the following advertising copy: "Quail Ridge, New Homes, straight ahead to St. Augustine Rd., Right to Caron Dr." At the time the sign was initially observed it was constructed of new lumber, with fresh dirt around the holes in which the standards were placed which supported the sign. The sign was located within the corporate limits of tie City of Jacksonville, Florida, in an area which is zoned "Commercial Intensive".

   
   

2. At the time the sign was initially inspected on May 8, 1979, no permit tag was affixed. In addition, the sign was located within two feet of another larger sign which had been properly permitted, was on the same side of the highway, and faced the same direction.

   
   

3. The DOT representative, upon inspection of the sign, contacted Joseph Pepe, the President of Respondent to discuss the sign in question. Mr. Pepe admitted that his company owned and erected the sign with its own work crew.

   
   

4. The sign was again inspected one day prior to the final hearing in this cause, and was still located in the same position and had no permit tag affixed to the structure.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. 120.57(1), Florida Statutes.

   
   

6. Section 479.02(2), Florida Statutes, empowers DOT to regulate the ". .

   .spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial [areas]" of the State of Florida.

   
   

7. Rule 14-10.06(1)(b)(3), Florida Administrative Code, provides that "[N]o two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction."

   
   

8. Section 479.07(1), Florida Statutes, prohibits the construction, erection, operation, use or maintenance of an outdoor advertising structure within any incorporated city or town without applying to DOT for a permit for that structure. These same requirements are contained in Rule 14-10.04(2), Florida Administrative Code.

   
   

9. Section 479.17, Florida Statutes, provides in part that:

   
   

   Any advertisement, advertising sign or advertising structure which is constructed, erected, operated, used, maintained, posted, or displayed in violation of this chapter is hereby declared to be a public and private nuisance and shall be forthwith removed, obliterated, or abated by the Department. . .

   
   

10. At all times material to this proceeding, the advertising sign or structure owned by respondent, Jopep Homes, Inc., and located on State Road 13,

1.8 miles north of the Duval-St. Johns county line, in Duval County, Florida,

was in violation of 479.02(2) and 479-07(1), Florida Statutes, and Rules 14- 10.04(2) and 14-10.06(1)(b)(3), Florida Administrative Code.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered by the state of Florida, Department of Transportation finding that the sign in question in this proceeding is a public and private nuisance and should be removed, obliterated or abated.

RECOMMENDED this 29th day of August, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Florida Department of

Transportation

Haydon Burns Building - Room 562 605 Suwannee Street

Tallahassee, Florida 32304

Joseph M. Pepe, President Jopep Homes, Inc.

12628 Attrill Road

Jacksonville, Florida 32223

Docket for Case No: 79-001424

Orders for Case No: 79-001424