STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0884T

)

HI-WAY ADVERTISING, )

)

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 April 20, 1988.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0458

For Respondent: Jack Williams, pro se

Highway Advertising 817 Florida Avenue Post Office Box 1989

New Port Richey, Florida 34656-1989

By Notices of Illegal Sign on Right of Way dated January 27, 1988, the Department of Transportation (DOT) seeks to levy a fine of $75 against Hi-Way Advertising, Respondent, for each of two signs. As grounds therefor, it is alleged that Respondent owned signs on the right-of-way of U. S. 19, 1/2 mile south of C. R. 582, and 3/4 mile south of C. R. 582.

At the hearing, Petitioner called one witness, Respondent called one witness and twelve exhibits were admitted into evidence. No proposed findings were submitted.

FINDINGS OF FACT

1. During an inspection of signs along U. S. 19, a DOT sign inspector observed Respondent's signs 1/2 and 3/4 mile south of C. R. 582 which appeared to be on the right-of-way of U. S. 19.

   
   

2. U. S. 19 is a Federal Aid Primary Highway and a part of the State Highway System. The right-of-way of U. S. 19 at this location extends 100 feet east and west of the centerline of U. S. 19 and 50 feet from the edge of the pavement of U. S. 19.

3. Measurements taken from the edge of the pavement of U. S. 19 to the sign 3/4 mile south of C. R. 582 revealed the sign to be 42 feet from the edge of the pavement. The other sign measured 43 feet from the edge of U. S. 19. Accordingly, both signs were on the right-of-way of U. S. 19.

   
   

4. Generally, the telephone poles and power line poles are erected along the DOT right-of-way of roads in the State Highway System, and the line of these poles is usually believed to mark the right-of-way boundary.

   
   

5. Photographs of Respondent's signs showed those signs to be erected just touching this pole line, but outside that line. Photographs submitted by Respondent also showed other signs clearly on the right-of-way which were not cited as being in violation. One of these signs advertised Job Services of Florida, a state agency. The DOT inspector testified this sign was not cited because he understood state owned signs were exempt from the-no sign on right- of-way statute.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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.

   
   

8. 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.

   
   

9. 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 $150 against Hi-Way Advertising for the two signs erected in the DOT right-of-way along U. S. 19.

ENTERED this 9th day of May, 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 9th day of May, 1988.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0458

Jack Willman

Hi-Way Advertising 817 Florida Avenue Post Office Box 1989

New Port Richey, Florida 34656-1989

Kaye N. Henderson Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450 Atten: Eleanor F. Turner, MS 58

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 88-000884

Orders for Case No: 88-000884