Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Nov. 25, 1987
Summary: Illegal sign on right of way
87-3647STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3647T
)
GIA & ASSOCIATES, 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 October 27, 1987, at Clearwater, Florida.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064
For Respondent: Thomas A. Giambarberee, pro se
577 South Duncan Clearwater, Florida 33516
RECOMMENDED ORDER
By Notice of Illegal Sign on Right-of-Way dated July 31, 1987, the Department of Transportation, Petitioner, seeks to levy a $75 fine against Gia & Associates, Inc., Respondent. As grounds therefor it is alleged that Respondent's sign along U.S. 19, .3 mile north of Floramar in Pasco County was on the right-of-way.
At the commencement of the hearing, Respondent acknowledged that the sign was located on the right-of-way as alleged and called one witness who testified to the circumstances surrounding the sign being on the right-of-way. Petitioner presented no evidence. No transcript was ordered and no proposed recommended orders have been received.
FINDINGS OF FACT
On July 31, 1987, a sign owned by Hodessa Corporation for whom Gia Associates is the agent was located on the right-of-way of U.S. 19 in Pasco County, .3 mile north of Floramar.
When erected by the sign company some months earlier the sign was located in a legal location and not on the right-of-way of U.S. 19.
Considerable construction work was being done on the property owned by Hodessa. Upon completion of the parking lot the sign was moved by the construction workers onto the right-of-way of U.S. 19. As soon as this error was discovered by Respondent the sign was relocated to its proper position.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
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.
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.
The assessment of the fine of $75 appears mandatory under the clear wording of the statute. However, under the circumstances here existing, this seems an unnecessarily harsh result. Accordingly, it is
RECOMMENDED that a Final Order be entered dismissing the fine of $75 against Gia & Associates, Inc.
ENTERED this 25th day of November, 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 25th day of November, 1987.
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064
Gia & Associates, Inc.
577 South Duncan Clearwater, Florida 33516 Attn: Tom Giambarberee
Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 87-3647T
GIA & ASSOCIATES, INC.,
Respondent.
/
FINAL ORDER
The record in this Proceeding and the Recommended Order of the Hearing Officer have been reviewed. No exceptions to the Recommended Order have been filed.
The Findings of Fact in the Recommended Order are considered correct and are incorporated herein as part of this Final Order. The Conclusions of Law are considered correct with the following exception.
The Hearing Officer's conclusion that the assessment of the $75 fine is unnecessarily harsh and his concomitant recommendation that the fine be dismissed are rejected. Section 479.107(5), Fla. Stat. Provides in pertinent part:
Furthermore, the department shall assess a fine of $75 against the sign owner for any sign which violates the requirement of this section. [Emphasis added)
As the Hearing Officer correctly noted, the foregoing language imposes upon the Department the duty to assess the fine. In view of this unequivocal, mandatory language the Department has no discretion to waive or assess the fine as the facts of a particular case, no matter how compelling, might indicate.
Accordingly, it is
ORDERED that the $75 fine provided for in Section 479.107(5), Fla. Stat., be and the same is hereby assessed against Respondent, Gia & Associates, Inc.
DONE AND ORDERED this 30th day of December, 1987.
KAYE N. HENDERSON, P.E.
Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
Copies furnished to:
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
THOMAS A. GIAMBARBEREE
577 South Duncan Clearwater, Florida 33516
CHARLES G. GARDNER, ESQUIRE
Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
NOTICE OF RIGHT TO JUDICIAL REVIEW
Judicial review of agency final order may be Pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Docket for Case No: 87-003647
Orders for Case No: 87-003647
