STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3985T

) RAINBOW STAINED GLASS, 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 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: Not present or represented.

By Notice of Illegal Sign on the Right-of-Way dated July 31, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine of $75 against Rainbow Stained Glass, Inc., Respondent. As grounds therefore it is alleged Respondent owned a sign located on the right-of-way of

1. 19, 1000 feet north of Pacific Avenue in Hernando County. The hearing was scheduled to commence at 3:00 P.M., and after waiting a reasonable time for Respondent to appear, the hearing proceeded. Thereafter, Petitioner called one witness and one exhibit was admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. On or about July 31, 1987, a DOT sign inspector observed a sign opposite Respondent's place of business advertising Respondent's business, which appeared to be on the DOT right-of-way of U.S. 19 in Hernando County. Measurements to place the sign in relation to U.S. 19 were taken.

      
      

   2. The right-of-way of U.S. 19 at this location, as determined by a DOT right-of-way marker 1000 feet south of Respondent's sign and the DOT right-of- way map, shows the right- of-way to extend 55 feet west of the edge of the pavement of U.S. 19. The sign at issue was located 46 feet from the edge of the pavement placing the sign 9 feet inside the DOT right-of-way line.

      CONCLUSIONS OF LAW

      
      

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

      
      

   4. Section A79.11, 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.

      
      

   5. 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 Rainbow Stained Glass, Inc.

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

Thomas Brown, President Rainbow Stained Glass, Inc. 5135 Commercial Way

Weeki Wachee, Florida 33526

Kaye N. Henderson, P.E. Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-003985

Orders for Case No: 87-003985