STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5215T

)

FURNITURE WORLD, )

)

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, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

For Respondent: Sylvia Grant, pro se

800 U. S. 19 South

Tarpon Springs, Florida 34689

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 against Furniture Word, Respondent. As grounds therefor, it is alleged that Respondent owned a sign on the right-of-way of U.

1. 19, 0.3 mile south of Sunrise in Pinellas County.

   
   

   At the hearing, Petitioner called one witness, Sylvia Grant testified in behalf of Respondent and four exhibits were admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. On or about October 28, 1987, a DOT sign inspector observed a portable sign owned by and advertising Furniture World apparently on the right-of-way of

      U. S. 19 in front of the Furniture World business in Pinellas County.

      
      

   2. At this location, the right-of-way of U. S. 19 extends 100 feet from the centerline and 50 feet from the edge of the pavement of U. S. 19. Measurements taken from the edge of the pavement of U. S. 19 to the sign showed the sign to be 42 feet from the edge of the pavement.

      
      

   3. Prior to October 28, 1987, the owners of Furniture World removed the sign from its normal location in front of the business to a location where it

      was not visible from U. S. 19. Furniture World had stopped its nightly openings, and the face of the sign advertised the store as "open tonight."

      
      

   4. Sometime during the evening hours of October 27, 1987, the sign had been placed on the U. S. 19 right-of-way by a person or persons unknown to the owners of Furniture World. The sign was observed by the owners when the store opened on October 28, and they were awaiting the arrival of the son of one of the owners to remove the sign when the sign was cited by Petitioner.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   6. 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.

      
      

   7. 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.

      
      

   8. DOT has interpreted this statutory provision to impose insurer's liability on the owner of a sign found on the DOT right-of-way regardless of how the sign got on the right-of-way. While this result appears harsh, under the circumstances in this case this interpretation is binding. Accordingly, it is

RECOMMENDED that a final Order be entered assessing a fine of $75 against Furniture World.

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

GARY KISSINGER

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

FURNITURE WORLD

800 U. S. HIGHWAY 19 SOUTH, SUITE 1A TARPON SPRINGS, FLORIDA 34689

ATTN: SYLVIA GRANT

KAYE N. HENDERSON, SECRETARY HAYDON BURNS BUILDING

605 SUWANNEE STREET

TALLAHASSEE, FLORIDA 32399-0450

THOMAS H. BATEMAN, III, ESQUIRE GENERAL COUNSEL

562 HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32399-0450

Docket for Case No: 87-005215

Orders for Case No: 87-005215