STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6715T

)

BETTY M. BROTHERS REAL )

ESTATE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 13, 1990, in Key West, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Rivers Buford, Jr., Esquire

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Ms. Betty M. Rein

Betty M. Brothers Real Estate, Inc. Post Office Box 456

Big Pine Key, Florida 33043-0456

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent's sign identified in the Department's Notice NO. 6-268 is in violation of Section 479.11, Florida Statutes.

PRELIMINARY STATEMENT

At the hearing both parties presented the testimony of witnesses and offered exhibits which were received in evidence. At the conclusion of the hearing both parties presented oral closing arguments. The Petitioner waived the filing of a proposed recommended order and has not filed one. The Respondent requested the opportunity to file a proposed recommended order and was allowed fourteen days from the date of the hearing within which to do so, but no proposed recommended order has been filed by the Respondent. A transcript of the hearing was not prepared in this case.

FINDINGS OF FACT

1. The sign that is the subject of this proceeding is a wooden billboard sign owned by the Respondent. The sign is located on the "northbound" side of the Overseas Highway, which is also known as U.S. No. 1 and as State Road No. 5, about 300 feet "south" of the South Pine Channel Bridge in Monroe County, Florida. The Overseas Highway is part of the State Highway System and the federal-aid primary highway system.

   
   

2. Along the portion of the Overseas Highway where the subject sign is located, the right-of-way owned by the State of Florida is 400 feet wide, extending 200 feet in each direction from the center line of the highway. The subject sign is located well within the state right of way, the closest portion of the sign being approximately 50 feet from the center line of the highway right-of-way.

   
   

3. On March 30, 1982, the parties to this case entered into a settlement agreement in DOAH Case No. 79-1240T to resolve a dispute about whether this same sign should be removed. Their settlement agreement, which was read into the record of the prior proceeding, includes a provision that the Respondent will voluntarily remove the subject sign by no later than February 28, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 479.11(8), Florida Statutes, states: "No sign shall be erected, used, operated, or maintained: ... (8) 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."

   
   

6. Section 479.107, Florida Statutes, authorizes the removal of signs that are in violation of Section 479.11(8), Florida Statutes, and establishes procedures to that end. Finally, Section 479.107(5), Florida Statutes, provides:

   
   

   (5) The cost of removing a sign, whether by the department or an independent contractor, shall be assessed by the department against the owner of this 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 subject sign owned by Respondent is clearly in violation of Section 479.11(8), Florida Statutes. (The continued existence of the sign is also clearly in violation of the settlement agreement in Case No. 79-1240T.) As a result of the violation of Section 479.11(8), Florida Statutes, Section 479.107, Florida Statutes, authorizes the removal of the sign and requires the assessment of removal costs and a $75 fine.

RECOMMENDATION

Based on the foregoing, it is recommended that the Department of Transportation issue a Final Order in this case requiring the removal of the subject sign and assessing against the Respondent the costs of removal and a fine in the amount of $75.

DONE and ENTERED this 30th day of April 1990, at Tallahassee, Leon County, Florida,

MICHASE M. PARRISH

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 of Administrative Hearings this 30th day of April, 1990.

COPIES FURNSIHED:

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

Tallahassee, Florida 32399-0458

Ms. Betty M. Rein

Betty M. Brother Real Estate, Inc. Post Office Box 456

Big Pine Key, Florida 33043-0456

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Robert Scanlan

Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-006715

Orders for Case No: 89-006715