STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3841T

)

DON'S PORTA SIGNS, )

)

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

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Herb Selak, pro se

1841 Nursery Road

Clearwater, Florida 33540

By Notice of Illegal Sign on Right of Way, dated July 16, 1987, the Department of Transportation (DOT), Petitioner, seeks to assess an administrative fine of $75 against Don's Porta Signs, Respondent. As grounds therefor, it is alleged that Respondent owned a sign that was on the DOT right- of-way along U.S. 19, 800 feet south of Lime, in Pinellas County.

At the hearing, Petitioner called one witness, Respondent called one witness, and 13 exhibits were admitted into evidence. The initial order of a transcript was subsequently cancelled, and proposed findings were not submitted. Three additional violations issued to Respondent for other signs on the right of way of U.S. 19 were heard serially with this case. The parties stipulated that testimony given in Case No. 87-3841T would be adopted in Case Nos. 87-3842T, 87- 3843T and 87-3844T insofar as applicable.

FINDINGS OF FACT

1. On July 15, 1987, the DOT sign inspector observed a sign owned by Respondent in front of McDonald's restaurant on what appeared to be the right- of-way along the western side of U.S. 19, 800 feet south of Lime, in Pinellas County.

2. The DOT right-of-way along U.S. 19 at this location extends 100 feet eastward of the centerline of U.S. 19. The right-of-way line on the western side of U.S. 19 at this location is 55 feet from the westernmost edge of the southbound lanes. Measurements taken from the pavement edge to the sign located the sign 48 feet from the edge of the pavement, which is 7 feet inside the right of way line.

   
   

3. When a permit for this sign was obtained by Respondent from the City of Tarpon Springs Planning Department, a sketch accompanying the application (Exhibit 5) located the sign 30 feet from the edge of the pavement of U.S. 19. When cited for being on the right of way, this sign was located further from the pavement of U.S. 19 than landscaping shrubs planted and tended by McDonald's in front of the restaurant. For these reasons, Respondent assumed the sign was legally positioned.

   
   

4. The location of the DOT right of way is not readily determinable by a businessman desiring to erect a sign in front of his business. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of location of the limit of the right-of-way. This is specifically true where additional right-of-way has been acquired by DOT along

   U.S. 19 and other highways.

   
   

5. Upon being notified of the citation of this sign for being located on the right-of-way, Herb Selak, owner of Don's Porta Signs, rode up and down U.S.

19 and observed numerous signs located inside the power pole lines which had not been cited. Photographs of those signs were admitted into evidence as Exhibit

1. A written list of those signs provided by Selak for DOT was admitted as Exhibit 10.

   
   

   1. Selak also observed a DOT vehicle parked in a restaurant parking, and he pulled in and observed one sign inspector emerge from the restaurant with another person and point out the portable sign in front of the restaurant. A photo of this sign showing it to be inside the power pole line was admitted into evidence as Exhibit 9. This sign was not cited by the inspector.

      
      

   2. Selak made an appointment and proceeded to Bartow to discuss the citing of his signs for violating the right-of-way. He gave a copy of Exhibit 10 to the chief of the outdoor advertising section for DOT District I. Most of these signs were subsequently cited by the DOT inspector for being on the right- of- way.

      
      

   3. Where signs are located on newly acquired right-of-way, the department takes the position that the sign owner be notified that the sign is in the right-of-way, and he is entitled to a reasonable time in which to remove the sign therefrom.

      
      

      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 State Highway System, Interstate Highway System or Federal Aid Primary Highway System. Respondent's sign was located on the right-of-way as alleged.

   6. 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 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.

      
      

   7. 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 Don's Porta Signs.

ENTERED this 4th day of March, 1988, 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 4th day of March, 1988.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

State Outdoor Advertising Administrator

Department of Transportation Haydon Burns Building, M.S. 22 Tallahassee, Florida 32399-0450

Herb Selak, pro se Don's Porta Signs 1841 Nursery Road

Clearwater, Florida 33540

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Kaye N. Henderson Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 Atten: Eleanor F. Turner

Docket for Case No: 87-003841

Orders for Case No: 87-003841