STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2389T

)

BAY COLONY PROPERTY OWNERS )

ASSOCIATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Department of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case, on April 25, 1990 in Tampa, Florida.

APPEARANCES

For Petitioner: Rivers Buford, Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: John Stein

5007 Beacon Road

Palmetto, Florida 34221 STATEMENT OF THE ISSUES

Whether Respondent's sign located along the west side of U.S. 19, 15 feet south of Eighth Avenue Boulevard West in Palmetto, is permitted or eligible to be permitted.

PRELIMINARY STATEMENT

By Notice of Alleged Violation dated April 3, 1990, the Department of Transportation, (DOT), Petitioner, seeks to require Bay Colony Property Owner's Association, Respondent, to remove their sign located along U.S. 19, 15 feet south of Eighth Avenue Boulevard West in Palmetto, Florida. As grounds therefor, it is alleged the sign is in violation of Section 497.07(1), Florida Statutes, by not having been issued a permit. The existence of this Notice of Violation was brought to the attention of this Hearing Officer when John Stein requested that this alleged violation be heard at the same time as the earlier violation in Division of Administrative Hearings case No. 89-6716T. DOT forwarded a copy of the alleged violation, and at the commencement of the hearing Mr. Stein presented a letter requesting a hearing to challenge the violation notice dated April 3, 1990. All procedural matters regarding notice, etc., were waived by the parties. Thereafter Petitioner called one witness,

Respondent called two witnesses and two exhibits were admitted into evidence. At the conclusion of the hearing, the parties waived the rights to submit proposed recommended orders.

FINDINGS OF FACT

1. Bay Colony Property Owner's Association, Respondent, is the owner of the sign depicted in Exhibit 1 located on the west side of U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. No permit has ever been issued for this sign.

   
   

2. DOT is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. U.S. 19 is a federal aid primary highway.

   
   

3. The sign in issue is an outdoor advertising sign as that term is defined in Section 479.01(14), Florida Statutes (1989).

   
   

4. On April 4, 1975, Palmetto County issued Respondent a building permit to erect a sign in the same general location as the existing sign.

   
   

5. Bay Colony had maintained a large billboard at this approximate location sometime before 1969. By 1975, the lumber and timbers in the billboard had rotted and required replacement. No evidence was presented that a state permit was ever issued for the original billboard.

   
   

6. The existing sign was removed by county officials when a drain line was placed under U.S. 19 and replaced with a strengthened base when the work was completed.

   
   

7. On one occasion during the last few years, the sign was demolished by vandals and replaced at a slightly different location.

   
   

8. The sign is on private property owned by a Van Hoogen who lives in New Hampshire. The property owner's permission for the use of this site is not an issue in these proceedings.

   
   

9. There exists a permitted sign some 570 feet from Respondent's sign located on the same side of U.S. 19 and visible from the same direction as Respondent's sign.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 479.07(1), Florida Statutes, provides that a person shall not erect a sign along an interstate highway or a federal aid primary highway without first obtaining a permit from DOT.

    
    

12. Section 497.07(9)(a)2 provides that no sign shall be erected along a federal aid primary highway closer than 1000 feet from an existing sign on the same side of the highway.

13. It appears likely that the initial sign erected by Bay Colony was an on-premise sign when the developer commenced the project. If so, a permit was not required. As provided in Section 479.16, signs erected on the premises of an establishment which consists primarily of the name of the establishment or which identify the merchandise sold at the establishment are exempt from the permitting requirement. However, if it ever did qualify as an on-premise sign, the existing sign does not now so qualify.

    
    

14. Respondent's argument that because the sign has been in the same location for more than 20 years a prescriptive right to retain the sign has accrued, is without merit.

    
    

15. Initially, prescriptive rights do not run against the state. Secondly, property owners cannot bar the state from imposing reasonable restrictions on the use of private property.

    
    

16. From the foregoing, it is concluded that Respondent's sign along the west side of U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida, is an illegal sign by reason of having no permit issued for this sign. The presence of an existing sign on the same side of U.S. 19 within 1000 feet of Respondent's sign precludes Respondent obtaining a permit for this sign.

RECOMMENDATION

It is recommended that a final order be entered requiring Respondent to remove its sign along U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida.

DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990.

COPIES FURNISHED:

Frank J. Seiz

481 Palmetto Point Road Palmetto, FL 34221-9721

Rivers Buford, Esquire Department of Transportation 605 Suwanee Street

Tallahassee, FL 32399-0458

John Stein

Bay Colony Property Owners Association 5007 Beacon Road

Palmetto, FL 34221

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, FL 32399-0458

Robert Scanlon, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Docket for Case No: 90-002389

Orders for Case No: 90-002389