STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-748T

) HENDERSON SIGNS and UNION 76 ) AUTO/TRUCK STOP, INC. (3.07 miles )

east of SR 71 ) )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this cause was begun pursuant to notice on July 35, 1980, in Chipley, Florida, by Stephen P. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This cause arose on a Notice of Violation prepared by the Department of Transportation alleging that an outdoor advertising sign located 3.07 miles east of State Road 71 in Interstate 10 was in violation of Sections 479.07(1), (6) and (7) and 479.11, Florida Statutes, and Rule 14-10.05, Florida Administrative Code. This Notice of Violation was sent by the Department of Transportation to several persons, of which Henderson Signs and Union 76 Auto/Truck Stop, Inc. requested a formal hearing.

APPEARANCES

For Petitioner: Charles G. Gardner, 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

Special Charles M. Wynn, Esquire Appearance: 310 East Jackson Street

Pest Office Box 793 Marianna, Florida 32446

Prior to the initial hearing, Union 76 Auto/Truck Stop, Inc. moved to be dismissed as a party respondent because of the failure of the Department of Transportation to properly serve the correct corporation. This motion was granted, and the Department did not amend its notice.

At the beginning of the hearing the Department moved to dismiss Henderson Signs as a party respondent for failure of Henderson Signs to demonstrate a substantial interest as required by Chapter 120, Florida Statutes. This motion was denied. Although Chapter 120 requires a party to have a substantial

interest, Chapter 479, Florida Statutes, makes ownership, construction, maintenance, use, etc. of an illegal sign a criminal offense. For Henderson Signs to demonstrate a substantial interest in the sign, Henderson Signs would necessarily have to admit to one of the relationships cited in the statute.

This requires the Respondent to make an incriminating statement in order to obtain a due process hearing. This requirement has the same objectionable quality that the court addressed in State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487. In Vining, the court held that the Florida Real Estate Commission could not require a respondent to file a sworn denial of the allegations in an administrative complaint as a prerequisite to a due process hearing. The court held that this violated the constitutional prohibitions against self-incrimination. The same issue is present when, as a prerequisite to a due process hearing, a person must establish their substantial interest in the allegedly illegal sign when ownership, construction, maintenance, use, etc. of such a sign is a criminal violation. Further, the fact that the Department of Transportation did notified an individual respondent of the allegation against him is sufficient to establish substantial interest as that term is used in Chapter 120, Florida Statutes. By requesting a hearing, Respondent Henderson Signs has done all that it need do to require the Department of Transportation to prove the Ear illegality of the sign as alleged in the Notice of Violation.

The Respondent Play elect to defend the charge or not; however, the request for a hearing acts as a general denial sufficient to precipitate the due process hearing.

At the conclusion of the hearing on July 15, 1980, the issue of ownership was raised by Respondent Henderson Signs, which moved at that time to dismiss the cause because of the failure of the Department of Transportation to give notice of the violation to the owner of the sign or to prove that one of the persons noticed was the owner of the sign. This issue was addressed in the order dated September 16, 1980, denying the motion. To summarize that order, it was held that the action was an in personam proceeding and the statutes required notice to the owner only when the owner has complied with the provisions of Section 479.07(7), Florida Statutes, requiring the owner's name to appear on the sign. In the absence of the owner's name appearing on the sign, the Department may proceed under the provisions of Section 479.17, Florida Statutes, to have the sign removed in one of several different ways. When the Department elects to proceed administratively, the Department may give notice to those who it has reason to believe have an interest in the sign. Those persons noticed may request a formal hearing, at which the Department must show that the sign is in violation of Chapter 479. Pursuant to Section 479.17, supra, the Department establishes its right to remove the sign by making such a showing. The owner may then show that the sign does not violate the chapter. Section 479.17, supra, would require the owner to admit ownership as a prerequisite to presenting its case; but, when read in conjunction with Chapter 120, Florida Statutes, would not require the admission of ownership as a prerequisite for asking for a formal hearing. At an administrative hearing, whether the Department of Transportation had given notice to all those with an interest in the sign is immaterial. Only those persons noticed and those in privity with them would be bound by any administrative order. The issue of whether the proper persons were noticed would only be raised in an action for wrongful damage to property by the owner after a final order by the agency head to remove the sign had been carried into effect. At that time, the court would have to determine whether the Department of Transportation had given notice to the owner and those in privity with him at the time of the original administrative hearing. Based upon the foregoing, the Respondent's Motion to Dismiss the Notice of Violation was denied, and the matter was rescheduled for hearing.

At the rescheduled hearing, held on October 2, 1980, in conjunction with other cases involving the same parties, Respondent Henderson Signs did not present any evidence, and the parties made no closing aegument. The case was presented for the Recommended Order based upon the case as initially presented by the Department of Trasportation.

FINDING OF FACT

1. The parties stipulated to Exhibits 1, 1(a), 2, 3, 4 and 5, which were received into evidence.

   
   

2. The sign which is the subject of the Notice of Violation is located

   3.07 miles east of State Road 71 on the south side of the road known as Interstate 10 (Transcript, pages 27, 28 and 32).

   
   

3. The sign is visible from the main traveled way of the road known as Interstate 10.

   
   

4. Exhibit 5, a federal highway system map, was introduced and shows the designation of federal-aid primary roads and the interstate system as they exist in Jackson County, Florida. The road known as Interstate 10, beside which the sign in question is located, is a part of the interstate system.

   
   

5. The sign in question was constructed between March and November of 1979. Interstate 10 at the point where the sign is located was opened in 1978.

   
   

6. The sign in question is located within 139 feet of the pavement of the right edge of the eastbound lane of Interstate 10. The sign in question bears no permit and does not bear the owner's name. A search of the records of the Department of Transportation revealed that no application for the erection of the sign had been made.

   
   

7. There is no zoning in Jackson County, Florida.

   
   

8. The outdoor advertising inspector for the Department of Transportation developed information from the owner of the truck stop located at the intersection of Interstate 10 and State Road 71 that said business leased the sign. The inspector developed further information that led him to believe that Henderson Signs had an ownership interest in the sign. The inspector also developed information that the land upon which the sign was located was owned by George Dryden, and that West Florida Electric Company provided electrical service to the sign.

   
   

9. Notices were sent to West Florida Electric Company, Florida Public Utility Company, George Dryden, Union 76 Autos Truck Stop, Inc. and Henderson Signs. Henderson Signs requested a formal hearing and appeared through counsel at the hearing.

   
   

10. The Department of Transportation has made a good-faith attempt to locate and notify those with a possible ownership interest in the sign, to include the business advertising on the sign, the owner of the land upon which the sign is located, and Henderson Signs, believed to be the owner of the sign.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Department of Transportation alleges the sign In question violates Section 479.07(1) , (6) and (7) and Section 479.11(1), Florida Statutes, and

    Eule 14-10.05, Florida Administrative Code. Section 479.07(1), Florida Statutes, prohibits erection of any sign without first obtaining a permit and requires that the permit tag be attached to the sign. Section 479.07(6), Florida Statutes, prohibits a person from erecting a sign without first obtaining Lthe written permission of the owner or lessee of the property where the sign is to he located and requires application for and receipt of a current tag. Section 479.07(7) Florida Statutes, requires that any person who erects, uses or maintains a sign to affix their name to the front of the sign so that it is visible from the front surface of the advertising structure.

    
    

12. The evidence shows that the road known as Interstate 10 in Jackson County, Florida, was designated an interstate highway by the Department of Transportation and approved by the appropriate authority of the federal government.

    
    

13. The evidence presented also shows that the subject sign is an outdoor advertising structure bearing an advertising message visible from the main traveled way of an interstate highway. The structure is a sign within the definition of Section 479.01(1), Florida Statutes, and the Department of Transportation has jurisdiction to regulate the sign in question under the provisions of Chapter 479, Florida Statutes. The evidence also shows that the sign lacks a permit, that no application was made for a permit for the sign, and that at the time the sign was cited it did not bear the name of the person who erected, used or maintained the sign. No evidence was presented regarding whether the land owner had given written permission for the sign to be erected on his property; however, the evidence does show a clear violation of Section 479.07(1), (6) and (7), Florida Statutes.

    
    

14. The Department of Transportation further alleges that the sign violates Section 479.11(1), Florida Statutes, which prohibits erection of a sign within 60() feet of the nearest edge of the right-of-way -if an interstate highway. The sign is located within 600 feet of the nearest edge of the right- of-way of Interstate 10, and is visible from the traveled way or the lanes of Interstate 10. The sign is not located within an area zoned commercial or industrial or in an unzoned commercial or industrial area. No evidence was presented that the sign meets any exception provided in Section 479.111, Florida Statutes. The evidence shows a violation of Section 479.11(1)# Florida Statutes, and Rule 14-10.05(1)(a), Florida Administrative Code, which essentially restates the provisions of Section 479.11, supra. Section 479.11, Florida Statutes, would authorize the Department of Transportation to proceed to remove any sign erected in violation of Chapter 479. The Department has demonstrated the sign was erected in violation of Chapter 479.

    
    

15. Pursuant to Section 479.17, Florida Statutes, the Department of Transportation is only required to give notice to the owner when the owner's name appears on the sign. The sign in question did not bear the owner's name when cited, contrary to Section 479.07(7), Florida Statutes, and the Department had no obligation to notify the owner. The Department exercised reasonable diligence in attempting to locate and notify persons who might have an interest in the sign. Based upon the evidence presented, the persons noticed of the violation and those in privity with them should be bound by the orders arising out of this proceeding.

    
    

16. The issue of compensation to the owner for the removal of the sign is a complex issue which is new before the Supreme Court of Florida. However, it does not appear that any appellate decision has approved compensation to a sign owner for the removal of a sign which was erected after 1971 in total disregard

of the law. The facts in the instant case show that the sign was illegaIly erected, and the Department of Transportation has exercised restraint in enforcing the provisions of Chapter 479. It would appear that the removal of the subject sign should be without compensation to the owner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner.

DONE and ORDERED this 31st 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

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301

James P. Appleman, Esquire

206 Market Street Post Office Box 3115

Marianna, Florida 32446

Charles M. Wynn, Esquire

310 East Jackson Street Post Office Box 793 Marianna, Florida 32446

Docket for Case No: 80-000748

Orders for Case No: 80-000748