STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0439T

) CALADESI MANAGEMENT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on April 15, 1987 at Tampa, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

For Respondent: Leonard A. Leighton

1212 South Highland Avenue Clearwater, Florida 33516

(Leighton also represents the condominium association which will ultimately pay any fine levied)

By Notice of Illegal Sign in Right-of-Way dated December 11, 1986, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine of $75 on The Gardens of Beacon Square. As grounds therefore, it is alleged that an illegal sign was erected in the DOT right-of-way along U.S. 19. The letter requesting this hearing came from Caladesi Management, who represents The Gardens of Beacon Square condominium association. Accordingly, Caladesi Management was designated as Respondent.

At the hearing Petitioner called two witnesses, Respondent called two witnesses and four exhibits were admitted into evidence. There is no dispute regarding the facts here involved and the parties waived the right to submit proposed recommended orders.

FINDINGS OF FACT

1. The sign here in issue was erected in 1992 and remained in the same location until December 1986.

2. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system.

   
   

3. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation.

   
   

4. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Section 479.11, Florida Statutes, provides that no sign shall be erected, used, operated, or maintained which is located upon the right-of-way of any highway on the State Highway System, interstate highway system or federal- aid primary highway system.

   
   

7. Section 479.107, Florida Statutes, provides that any sign on the right- of-way of a highway in the State Highway System may be removed by the Department, that upon determination by the Department that such sign exists, the Department shall post notice on the sign for the owner to remove the sign immediately, that if the owner fails to so remove the sign the Department shall remove the sign whether or not a hearing has been requested by the owner or permittee. Subsection (5) thereof provides:

   
   

   The cost of removing a sign, whether by the department or an independent contractor, shall be assessed by the department against the owner of the sign. Furthermore, the department shall assess a fine of $75 against the sign owner for any sign which violates the requirements of this section.

   
   

8. The assessment of the fine of $75 is mandatory under the clear wording of the statute and those factors submitted by Respondent in mitigation of this fine, which are reasonable and would normally lead to a recommendation of leniency, are immaterial. It is

RECOMMENDED that a final order be entered assessing a fine of $75 against Caladesi management and The Gardens of Beacon Square association.

ENTERED this 7th, day of May, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450

Leonard A. Leighton, Esquire 1212 South Highland Avenue Clearwater, Florida 33516

Kaye N. Henderson, P.E. Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 87-000439

Orders for Case No: 87-000439