STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3984T

)

HAIR BENDERS, )

)

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

Haydon Burns Building Department of Transportation Tallahassee, Florida 32399-0458

For Respondent: Achilles Principe, pro se

7135 State Road 52, Suite 212

Hudson, Florida 33567

By Notice of Illegal Sign on Right-of-Way dated August 10, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine against Hair Benders, Respondent. As grounds therefore it is alleged the Respondent owned a sign located on the right-of-way of SR 52, 1500 feet east of US 19 in Pasco County.

At the hearing, Petitioner called one witness, Respondent called one witness, and eleven exhibits were admitted into evidence.

FINDINGS OF FACT

1. On August 4, 1987, a DOT sign inspector observed a sign advertising Respondent's business adjacent to the business and appearing to be on the right- of-way of SR 52 in Pasco County. Measurements were taken from SR 52 to the sign by the inspector.

   
   

2. The right-of-way of US 52 extends 50 feet north and south from the centerline of US 52 at this location. From the edge of the pavement of SR 52 the right of way extends 38 feet on the side on which Respondent's sign was located. The sign was measured to be 33 feet from the edge of the pavement.

   
   

3. Respondent placed the sign on property thought to be owned by the owner of the building in which the salon is located. There are other structures such

   as ornamental lamps which are also located on the right-of-way in this vicinity. However, Section 479.11(8), Florida Statutes, does not proscribe the erection of structures other than signs on the DOT right-of-way.

   
   

   CONCLUSIONS OF LAW

   
   

4. 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.

   
   

5. 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.

   
   

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 Hair Benders.

ENTERED this 9th 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 9th 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

Achilles Principe c/o Hair Benders

7135 SR 52, Suite 212

Hudson, Florida 33567

Kaye N. Henderson, P.E. Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-003984

Orders for Case No: 87-003984