STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1049T

) SANDPIPER CASUAL FURNITURE, )

)

Respondent. )

)

RECOMMENDED ORDER

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

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

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

For Respondent: Michael D. Edenfield, Esquire

1106 North Fort Harrison Avenue Clearwater, Florida 33515

By Notice of Illegal Sign on Right-of-Way dated December 9, 1986, the Department of Transportation (DOT), Petitioner, seeks to levy a fine of $75 against Sandpiper Casual Furniture, Respondent. As grounds therefor, it is alleged that on December 9, 1986, Respondent owned a sign erected west of U.S.

19 in Pasco County on the DOT right-of-way.

At hearing Petitioner called one witness, one witness testified on behalf of Respondent, and three exhibits were admitted into evidence. It was stipulated that the DOT right-of- way at this location extends 88 feet west of the edge of' the pavement of U.S. 19. There is no dispute regarding the facts in this case and the parties waived the right to submit proposed recommended orders.

FINDINGS OF FACT

1. On December 9, 1986, Respondent owned a sign that had recently been erected along the west side of U.S. 19 in Pasco County, Florida, 37 feet from the nearest edge of the pavement.

   
   

2. The DOT right-of-way at this location extends 88 feet west of the western edge of the pavement of U.S. 19.

3. Upon seeing the DOT sign inspector in the vicinity of the sign, an employee of Respondent came to the scene, saw the violation notice posted and offered to relocate the sign off of the right-of-way.

   
   

4. The sign in issue was relocated off of the DOT right-of-way within ten days of the notice of the violation.

   
   

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

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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.

   
   

8. 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 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 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.

   
   

9. The clear language of this statute makes the assessment of the fine mandatory and whether the sign owner was aware that such fine would be levied is immaterial.

RECOMMENDED that a final order be entered assessing a $75 fine against Sandpiper Casual Furniture for owning a sign on the DOT right-of-way along the west side of U.S. 19 in Pasco County on December 9, 1986.

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 Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450

Michael D. Edenfield, Esquire 1106 North Fort Harrison Avenue Clearwater, Florida 33515

Kaye N. Henderson, P.E. Secretary

Department of Transportation Hayden Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 87-001049

Orders for Case No: 87-001049