Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Dec. 11, 1987
Summary: Sign moved on right of way by third party. Owner not liable for fine.
87-3825STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3825T
)
AMERICAN LEGION 79, )
)
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 December 2, 1987, at Tampa, Florida.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0458
For Respondent: Charles Boyton, pro se
Post Office Box 113
New Port Richey, Florida 34291-0113
By Notice of Illegal Sign on Right-of-Way dated July 31, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine of $75 against American Legion Post #79, Respondent. As grounds therefor it is alleged Respondent's sign was located on the right-of-way of U.S. 19, 1000 feet south of Sunset Road in Pasco County, Florida. At the hearing, Petitioner called one witness, Respondent called one witness and three exhibits were admitted into evidence. The parties waived the right to submit proposed recommended orders.
FINDINGS OF FACT
On or about July 31, 1987, a DOT sign inspector observed Respondent's sign apparently on the right-of-way of U.S. 19, 1000 feet south of Sunset Road in Pasco County.
The right-of-way of U.S. 19 at this location on the east side of U.S.
19 extends 32 feet from the eastern edge of the paved lane. The sign was located 25 feet from the eastern edge of the paved lane.
Respondent admitted that the sign was in the right- of-way the day the inspector was there, but was relocated there without their knowledge or consent by the contractor paving the parking lot.
Davis Center gave Respondent permission to place their sign (Exhibit 2 and 3) on its property. The center is in the process of repaving its parking area in stages so as not to block off all parking at one time. To clear the area for the paving equipment the contractor moved Respondent's sign to the grassy area alongside the parking lot. As soon as Respondent learned its sign had been placed on the right-of-way, it removed the sign from the right-of-way.
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 located 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, a careful reading of section 479.107(1),F.S., does not indicate that the legislature intended to impose insurer's liability upon a sign owner whose sign is wrongfully removed from a lawful position to an unlawful position on the right-of-way by a third party. It is a cardinal rule of statutory construction that the entire statute under construction must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a review of the whole law in para materia, the reviewing court will determine legislative intent. State vs. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977). In statutory construction legislative intent is the pole star by which courts must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well settled canons of construction. Wakulla County vs. Davis, 395 So.2d 540 (Fla. 1981).
Applying these precedents to the conclusion that insurer's liability was not intended to be imposed on the sign owner, it is concluded that no penalty should be assessed when neither the owner of the sign nor its agent intentionally or negligently located the sign on the DOT right-of-way and removed the sign there from as soon as it became known the sign was so located. It is
RECOMMENDED that a Final Order be entered assessing no penalty against American Legion Post #79.
ENTERED this 11th day of December, 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 11th day of December, 1987.
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Gary Kissinger, State Outdoor Advertising Administrator Department of Transportation
Haydon Burns Building, Mail Station 22 Tallahassee, Florida 32399-0450
American Legion Post #79 Box 113
New Port Richey, Florida 34656
Kaye N. Henderson, P.E. Secretary
Department of Transportation 605 Suwannee Street
Haydon Burns Building Tallahassee, Florida 32399-0450
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 87-3825T
AMERICAN LEGION 79,
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 Department rejects the Hearing Officer's conclusion than the assessment of the $75 fine can be waived if the sign is moved to an unlawful position on the right of way by a third party. An unobstructed right of way is essential fur the safe, efficient operation of the state highway system. 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 requirements of this section. [Emphasis added]
The statute places the liability to the Department on the sign owner, so the sign owner would be responsible for seeking reimbursement from the responsible party. As the Hearing Officer correctly noted , the foregoing language imposes upon the Department the duly to assess the fine. In view of this unequivocal, mandatory language the Department has no discretion to waive or adjust the fine based on the facts of any particular case. 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, American Legion 79, for violation of Section 479.11(8), Fla. Stat. (1985). Within 15 days of this order, payment shall be made to:
Clerk of Agency Proceedings
Florida Department of Transportation Mail Station 58
562 Haydon Burns Building 605 Suwannee Street
Tallahassee, Florida 32399-0450
DONE AND ORDERED this 20th day of January, 1988.
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 32301
American Legion Post 79 Post Office Box 113
New Port Richey, Florida 34656
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32399
Gary J. Kissinger, Administrator Outdoor Advertising
Department of Transportation Haydon Burns Building Tallahassee, Florida 32399
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: 87-003825
Orders for Case No: 87-003825
