STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0563T

)

ALL AMERICAN COMMERCIAL )

PROPERTIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Charles G. Gardner, Esquire, of Tallahassee, for Petitioner. Shelley A. Balduf, of New Port Richey, pro se for Respondent.

Petitioner, Department of Transportation (DOT), cited Respondent, All American Commercial Properties, Inc., for two violations (one per sign face) for a single sign structure in a DOT right-of-way adjacent to U.S. 19 in New Port Richey. Respondent raised two questions about the notices of violation: (1) Respondent understood the DOT notice of violation to say that no fine would be due if the sign structure were removed within 10 days, as it was; and (2) Respondent thought the maximum fine should be one $75 fine for the sign structure, not two $75 fines. Unable to get those two questions resolved, Respondent responded to the notices of violation by asking for a formal administrative proceeding (although Respondent never contested the charge that the sign was in DOT right-of-way).

The formal administrative proceeding was held in Bartow on July 8, 1987.

At the final hearing, the DOT informed Respondent (and the Hearing Officer) that it was seeking the imposition of only one $75 fine (for the sign structure).

Respondent conceded that the sign was in DOT right-of-way.

FINDINGS OF FACT

1. On December 8, 1986, Respondent owned a sign that had been erected along the east side of U.S. 19 in Pasco County, Florida, approximately 51 feet from the nearest edge of the nearest through lane.

   
   

2. U.S. 19 at this location is a part of the State Highway System.

   
   

3. The DOT right-of-way at this location extends approximately 82 feet east of the eastern edge of the nearest northbound through lane of U.S. 19.

   
   

4. Upon seeing the DOT violation notice posted, someone notified Respondent.

   
   

5. Respondent had the sign removed from the DOT right-of-way within ten days of the notice of violation.

   CONCLUSIONS OF LAW

   
   

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 on 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 falls 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 by 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. (Emphasis added).

   
   

8. The clear language of this statute makes the assessment of the fine mandatory regardless of whether the sign owner has the sign removed from the right-of-way within 10 days.

RECOMMENDATION

It is

RECOMMENDED that a final order be entered assessing a $75 fine against All American commercial Properties, Inc., for owning a sign on the DOT right-of-way along the east side of U.S. 19 in Pasco County on December 8, 1986.

ENTERED this 22 day of July, 1987, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 22nd day of July, 1987.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450

All American Commercial Properties, Inc.

Attn: Shelley A. Balduf 6847 County Road 54

New Port Richey, Florida 33552

Kaye N. Henderson, P.E. Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, M.S. 58

Thomas H. Bateman, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-000563

Orders for Case No: 87-000563