STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 89-6103T

)

)

THE STEAKERY, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 89-6104T

)

)

SUGARLOAF LEISURE CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled consolidated cases on January 11, 1990, in Marathon, Florida.

APPEARANCES

For Petitioner: Rivers Buford, Jr., Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondents: Mr. William Hare

Owner, The Steakery

Owner, Sugarloaf Leisure Club Post Office Box 723

Summerland Key, Florida 33042 STATEMENT OF THE ISSUES

As to Case 89-6103T, whether the sign leased by Respondent, The Steakery, is in violation of state law and, if so, the remedial action that should be taken by the Department of Transportation.

As to Case 89-6104T, whether the sign leased by Respondent, Sugarloaf Leisure Club, is in violation of state law and, if so, the remedial action that should be taken by the Department of Transportation.

PRELIMINARY STATEMENT

Mr. William Hare is the owner of The Steakery and of the Sugarloaf Leisure Club, two businesses located in the vicinity of Summerland Key, Monroe County, Florida. Mr. Hare has leased two outdoor advertising signs attached to the same support structure with one sign being directly above the other. On one sign Mr. Hare advertises The Steakery while on the other he advertises the Sugarloaf Leisure Club.

On October 5, 1989, the Florida Department of Transportation (DOT) posted notices of violations on the two signs. These notices advised that the signs had not been issued the permits that are required by Section 479.07(1), Florida Statutes, and that the signs are in a location that is not eligible for a permit.

Mr. Hare, on behalf of his two businesses, requested a formal hearing on DOT's contentions. The cases were consolidated at the formal hearing with the consent of the parties.

At the formal hearing, DOT presented the testimony of one witness, William

C. Kenney, III, who is the Outdoor Advertising Coordinator for DOT District 6. Mr. Hare was the only witness on behalf of The Steakery and Sugarloaf Leisure Club. No exhibits were offered by the parties.

A transcript of the proceedings has been filed. Rulings on the proposed findings of fact submitted on behalf of DOT are in the appendix to this recommended order. There was no post-hearing submittal filed by The Steakery or by the Sugarloaf Leisure Club.

FINDINGS OF FACT

1. The Steakery and the Sugarloaf Leisure Club are businesses in Summerland Key, Monroe County, Florida, that are owned by William A. Hare.

   
   

2. For the past four years, Mr. Hare has, on behalf of his respective businesses, leased two outdoor advertising signs that are located on the same support structure with one sign being directly above the other. On one sign there appears an advertisement for The Steakery while on the other there appears an advertisement for the Sugarloaf Leisure Club.

   
   

3. These two signs face are located in Monroe County, Florida, on the northbound side of U.S. 1, a federal-aid primary highway. The support structure for the signs is approximately 10 feet from the highway.

   
   

4. No permit has been issued by the Florida Department of Transportation (DOT) for either sign.

   
   

5. The signs are located in a part of Monroe County which is zoned "Native Area". This area is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The signs are not located on the business premises of the sign owner.

   
   

6. The signs were inspected by the DOT's Outdoor Advertising Inspector and found to have no state sign permits attached them. On October 5, 1989, DOT caused to be filed against the two signs notices that neither sign had the permit required by law and that the zoning for the location of the signs did not

   permit outdoor advertising signs. Respondents have not contested the method by which the notices were posted.

   
   

7. Mr. Hare, on behalf of his businesses, filed a timely demand for formal hearing following his receipt of the notices of violation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes

   
   

9. Section 479.02(1), Florida Statutes, provides, in pertinent part, that the Florida Department of Transportation has the responsibility to regulate outdoor advertising signs along federal-aid primary highways.

   
   

10. Section 479.07, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. Except as provided in s. 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign

       ... on any portion of the ... federal- aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section.

       
       

11. Section 479.11, Florida Statutes, provides, in pertinent part, as follows:

    
    

    No sign shall be erected, used, operated, or maintained:

    1. Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in ss. 479.111 and 479.16.

       
       

12. Section 479.111, Florida Statutes, provides, in pertinent part, as follows:

    
    

    Only the following signs shall be allowed within controlled portions of

    ... the federal-aid primary highway system ...

    * * *

    1. Signs in commercial-zoned and industrial-zoned areas or commercial- unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of-way ...

    2. Signs for which permits are not required under S. 479.16.

13. The provisions of Section 479.16, Florida Statutes, contain no exception to the permitting requirements that is pertinent to these proceedings. Because the subject signs are located within 660 feet of a primary-aid federal highway in an area zoned "Native Area" the location of the signs does not meet the permitting criteria contained in Section 479.111(2), Florida Statutes.

    
    

14. Section 479.105, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. Any sign which is located adjacent to the right-of-way of any ... federal-aid primary highway system without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

       1. Upon determination by the epartment that a sign is in violation

          of S. 479.07(1), the department shall prominently post on the sign face a notice stating that the sign is illegal and must be removed within 30 days after the date on which the notice was posted.

       2. If, pursuant to the notice provided, the sign is not removed by the sign owner within the prescribed period, the department shall immediately remove the sign without further notice ...

       
       

15. The evidence in this case establishes that the permits required by law have not been granted for the subject signs and that the signs are located in an area that is ineligible for a permit. The provisions of Section 479.105, Florida Statutes, providing for the immediate removal of the signs, after appropriate notice, are applicable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order which

finds that permits required by law have not been issued for the subject signs, that the signs are in a location that is ineligible for permitting because of its zoning, and which orders the immediate removal of the subject signs.

DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division f Administrative Hearings this 15th day of February, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASES 89-6103T AND 89-61O4T

The following rulings are made on the proposed findings of fact submitted on behalf of the Department of Transportation:

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order.

COPIES FURNISHED:

Rivers Buford, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Mr. William Hare Owner, The Steakery

Owner, Sugarloaf Leisure Club Post Office Box 723 Summerland Key, Florida 33042

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Bulding

605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-006103

Orders for Case No: 89-006103