STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2576T

)

FRED SUTTLES, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on September 30, 1987. According to the file, the parties are represented by counsel:

For Petitioner: Charles G. Gardner, Esquire

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

For Respondent: J. Arby Van Slyke, Esquire

Post Office Box 13244 Pensacola, Florida 32591

These proceedings arise out of allegations by petitioner, Department of Transportation (DOT) evidently stated in notices of violations that respondent, Fred Suttles, Jr., violated the law governing erection of highway signs by the placement of a temporary sign 0.7 miles south of U.S. 90 on U.S. 27 in Escambia County, without obtaining a permit for the sign.

ISSUE

Whether respondent placed an unpermitted sign alongside U.S. 29 0.7 miles south of U.S. 90 in Escambia County in violation of Section 479.07(1), Florida Statutes?

FINDINGS OF FACT

1. At the time and place appointed for the hearing, neither party appeared or adduced any evidence. The hearing officer was later apprised that the parties had reached at least an oral agreement settling the dispute.

   
   

   CONCLUSIONS OF LAW

   
   

2. Whenever DOT declares a sign "a public nuisance and a private nuisance," Section 479.105(1), Florida Statutes (1985) for having been erected or maintained without a required permit, it must offer the sign owner an

   opportunity for hearing, like the one petitioner here availed himself of. If DOT prevails at the hearing, it may remove the sign (if it has not already done so) without compensating its owner.

   
   

3. Although declaring a highway sign unlawful, because it was erected without a permit, differs from revoking a sign permit, the practical consequences are hard to distinguish. No less than revoking a license or permit, razing a highway sign because it was erected unlawfully may be said to be "penal in nature." State ex rel. Vining v. Florida Real Estate Commission,

   281 So.2d 487, 491 (Fla. 1973). See Kozerowtiz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry,

   378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). As in license revocation proceedings, strict procedural protections should apply, and the prosecuting agency's burden must be to prove its case clearly and convincingly. See Ferris

   v. Turlington, 561 So.2d (Fla. 67); Addington v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 856, 851 (Fla. 2d DCA 1966).

   
   

4. Since the burden of proof is on DOT, a complete failure of proof means a failure to establish that the sign in question is subject to removal without compensating the owner.

It is, accordingly, RECOMMENDED:

That DOT leave standing petitioner's sign in Escambia County on U.S. 29 south of U.S. 90 by 0.7 miles or, if DOT has already taken it down, that DOT compensate petitioner by reimbursing petitioner the full value thereof.

DONE and ENTERED this 12th day of October, 1987 in Tallahassee, Florida.

ROBERT T. BENTON, II

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 12th day of October, 1987.

COPIES FURNISHED:

Rivers Buford, Jr., Esquire Department of Transportation

Haydon Burns Building, Mail Station 59 Tallahassee, Florida 32399-0450

Gary Kissinger, State Outdoor Advertising Administrator Department of Transportation

Haydon Burns Building, Mail Station 22 Tallahassee, Florida 32399-0450

J. Arby Van Slyke, Esquire Post Office Box 13244 Pensacola, Florida 32591

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 87-002576

Orders for Case No: 87-002576