STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2013T

)

EAST GATE MOTOR INN, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal hearing in this case was held pursuant to notice on August 21, 1980, in Orlando, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. Entry of the Recommended Order was delayed pursuant to stipulation to permit the parties to file proposed findings of fact. The Respondent filed its proposed findings on September 11, 1980. Petitioner did not file proposed findings.

This case arose upon a Notice of Violation served by the Department of Transportation upon East Gate Motor Inn alleging that two signs owned by East Gate were located upon the State's right-of-way contrary to Section 479.11(6), Florida Statutes, and Rule 14-10.05(1)(g), Florida Administrative Code, which is a restatement of the statutory provision cited.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: John L. O'Donnell, Jr., Esquire

Suite 1475, Hartford Building

200 East Robinson Street Orlando, Florida 32801

ISSUES

The parties entered into a stipulation which was read into the record and acknowledged by both parties. This stipulation and the testimony presented resolved the factual issues. The primary issue is the legal issue, whether a sign owned by a business, related to services furnished by the business, and not more than 100 feet from the business is exempted from the provisions of Section 479.11(6), Florida Statutes.

FINDINGS OF FACT

1. The State of Florida owns the right-of-way in question.

2. The State obtained tie right-of-way when the property was outside tie city limits of any incorporated area and before construction of the East Gate Motor Inn.

   
   

3. The property of East Gate Motor Inn, together with the signs and lamp posts in question, are now and were at the time of the Notice of Violation within the city limits of Kissimmee.

   
   

4. Federal regulations require the State of Florida to obtain a wider right-of-way in connection with federal-aid primary highways in unincorporated areas.

   
   

5. East Gate Motor Inn owns the sign and two posts with lights in question.

   
   

6. The structures are located within the right-of-way of State Road 500 (US Highway 192), which is a federal-aid primary highway.

   
   

7. The structures involved are used solely in connection with the merchandise, services and entertainment furnished by the East Gate Motor Inn and are not more than 100 feet from the parking area routinely used in its business.

   
   

8. The parties stipulated to the introduction into evidence of Exhibits 1 through 5.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Department of Transportation through its Notice of Violation alleges that the two signs in question (Exhibits 3a, 3b, 3c, 4b, 4d, 4e, 4f and 4h) are in violation of Section 475.11(6), Florida Statutes, by being in the State's right-of-way. The Respondent admits that these signs are located in the right-of-way but asserts they are exempted from Section 479.11(6), Florida Statutes, by Section 479.16(1), Florida Statutes.

   
   

10. Section 479.16(1), Florida Statutes, exempts certain signs from the provisions of Chapter 479 to include:

    
    

    1. Those constructed by the owner or lessee of a place of business or residence on land belonging to said owner or lessee and not more than 100 feet from such place of business or residence, and relating solely to merchandise, services or entertainment sold, produced, manufactured or furnished at such place of business or residence, are excepted from the permit fee, but do not exempt the license of a contractor who is engaged in the manufacture, erection or maintenance of such advertising sign; (Emphasis supplied)

       
       

11. Clearly, the signs in question do not meet the provisions of the exception because the signs in question are not constructed on land belonging to the owner. The signs are in violation of Section 479.11(6), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends to the agency head that a final order be entered directing that the signs in question be removed from the State's right-of-way.

DONE and ORDERED this 10th day of October, 1980, 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:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

John L. O'Donnell, Jr., Esquire Suite 1475, Hartford Building

200 East Robinson Street Orlando, Florida 32801

Docket for Case No: 79-002013

Orders for Case No: 79-002013