STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3549T

)

TRACK SIDE AUTO, )

)

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 September 9, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

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

For Respondent: Joseph Leone, pro se

12790 1/2 U.S. 19 South

Clearwater, Florida 33546

By undated letter received by Department of Transportation July 28, 1987, Track Side Auto, Inc., Petitioner, requests a hearing to challenge the Department of Transportation's (DOT), Petitioner, Notice of Illegal Sign on right-of-way dated July 24, 1987. At the hearing, Petitioner called one witness, Respondent called one witness and three exhibits were admitted into evidence. There is no dispute regarding the facts here involved.

FINDINGS OF FACT

1. On July 24, 1987, a DOT outdoor advertising sign inspector observed a portable sign in front of Respondent's business establishment along U.S. 19 just north of SR 696A.

   
   

2. The right-of-way along the west side of U.S. 19 extends 54 feet from the western edge of the pavement of U.S. 19. The sign was located 42 feet from the western edge of the pavement of U.S. 19. Thus the sign was clearly within the right of way.

   
   

3. Respondent presented testimony that the widening of U.S. 19 had already led to the taking of half its property including a large sign advertising the business, and the development of sink holes had caused the sign to be moved closer to the highway.

   CONCLUSIONS OF LAW

   
   

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

   
   

5. 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 Stated Highway System, Interstate Highway System or Federal Aid Primary Highway System. 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; and 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.

   
   

6. The assessment of the fine of $75 is mandatory under the clear wording of the statute. Accordingly, it is

RECOMMENDED that a Final Order be entered assessing a fine of $75 against Track Side Auto.

ENTERED this 16th day of October, 1987, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Haydon Burns Building Tallahassee, Florida 32399-0450

Joseph Leone

c/o Track Side Auto, Inc. 12790 U.S. 19 South

Clearwater, Florida 33546

Kaye N. Henderson, P.E. Secretary

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

Docket for Case No: 87-003549

Orders for Case No: 87-003549