STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5191T

)

LAKES AUTO, )

)

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 cause on March 10, 1988, at Clearwater, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Esquire

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

For Respondent: John D. Inhofer, pro se

5632 Land O'Lakes Boulevard Land O'Lakes, Florida 34639

By Notice of Illegal Sign on Right-of-Way dated November 3, 1987, the Department of Transportation (DOT), Petitioner, seeks to impose an administrative fine of $75 on Lakes Auto, Respondent. As grounds therefor, it is alleged that Respondent owned a sign on the east right-of-way of U. S. 41,

1. mile south of C. R. 583 in Pasco County.

   
   

   At the hearing, Petitioner called one witness, John Inhofer, owner of Lakes Auto, testified in behalf of Respondent and 3 exhibits were admitted into evidence. The parties waived the right to submit proposed recommended orders.

   
   

   RECOMMENDED ORDER

   
   

   1. On or about October 30, 1987, a DOT sign inspector observed a sign advertising Lakes Auto apparently on the right- of-way of U. S. 41, 0.1 mile south of C. R. 583 in Pasco County.

      
      

   2. The right-of-way of U. S. 41 at this location extends 50 feet east and west of the centerline of U. S. 41. A measurement taken from the centerline of

      U. S. 41 to Respondent's sign showed the sign to be 38 feet from the centerline of U. S. 41.

   3. Respondent acknowledged that the sign was in the right-of-way but, prior to being cited, thought the right-of-way extended only 10 feet from the edge of the pavement of U. S. 41.

      
      

      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 DOT 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 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.

      
      

   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 Lakes Auto.

ENTERED this 22nd 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 22nd day of March, 1988.

COPIES FURNISHED TO:

VERNON WHITTIER, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, MS 58 TALLAHASSEE, FLORIDA 32399-0450

JOHN D. INHOFER LAKES AUTO

5632 LAND O'LAKES BOULEVARD LAND O'LAKES, FLORIDA 34639

KAYE N. HENDERSON, SECRETARY DEPARTMENT OF TRANSPORTATION BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 ATTN: ELEANOR F. TURNER

THOMAS H. BATEMAN, III, GENERAL COUNSEL

562 HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32399-0450

GARY KISSINGER

STATE OUTDOOR ADVERTISING ADMIN. DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, MS 22 TALLAHASSEE, FLORIDA 32399-0450

Docket for Case No: 87-005191

Orders for Case No: 87-005191