STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3897T

)

1. TROPICAL FOODS, INC., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   The final hearing in this case was held on August 24, 1990, in Miami, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Esquire

   Department of Transportation 605 Suwannee Street, M.S. 58

   Tallahassee, Florida 32399-0458

   
   

   For Respondent: Julian L. Mesa, Secretary

   J.C. Tropical Foods, Inc. 2937 S.W. 27th Avenue, #305 Miami, Florida 33133

   
   

   STATEMENT OF THE ISSUES

   
   

   The issue in this case is whether the sign erected by J.C. Tropical Foods, Inc., (Respondent) on land it leased for this purpose along State Road 997 in Dade County, Florida, was in violation of state law and, if so, whether the removal of said sign was required.

   
   

   PRELIMINARY STATEMENT

   
   

   At the hearing, the Petitioner called William C. Kenney, III, outdoor advertising section coordinator, and introduced two exhibits. Julian L. Mesa testified on behalf of the Respondent. Official recognition was taken of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. The transcript of the final hearing was filed on September 4, 1990, and the parties were given ten days thereafter to file proposed recommended orders. The Appendix to this Recommended Order contains a ruling on each proposed finding of fact contained in the parties' timely filed proposed recommended orders.

   FINDINGS OF FACT

   
   

   1. The Respondent leased a parcel of land along State Road 997 in Dade County, Florida, for the purpose of erecting a sign to direct truckers to its packing house. The Respondent owns certain real property on which its packing house is located, but that property is approximately 1320 feet from State Road 997, and 1200 feet from the leased parcel. If a sign were erected on the property owned by the Respondent, it could not be seen from State Road 997.

      
      

   2. After leasing the subject parcel, the Respondent proceeded to erect its

      4 foot by 6 foot sign at a height of 45 feet. The sign was located approximately 18 feet from the State Road 997 right-of-way, and was visible from State Road 997.

      
      

   3. The sign was inspected by the Petitioner's outdoor advertising inspector and found to have no state sign permit attached to it. A notice of violation was, therefore, affixed to the sign on behalf of the Petitioner on or about May 30, 1990, and thereafter the sign was removed.

      
      

   4. State Road 997 in Dade County, Florida, has been designated a federal- aid primary road.

      
      

   5. The Respondent's sign was located on a leased parcel that was zoned AU, Agricultural District. The sign was not located on the business premises of the sign owner.

      
      

   6. A timely demand for formal hearing was filed on behalf of the Respondent following its receipt of the notice of violation, resulting in this formal proceeding.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

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

   9. Further, Sections 479.11 and 479.111, Florida Statutes, provide, in pertinent part, as follows:

      
      

      479.11 Specified signs prohibited. -- 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.

         
         

         479.111 Specified signs allowed within controlled portions of the interstate and federal-aid primary highway system. -- Only the following signs shall be allowed within controlled portions of ... the federal-aid primary highway system ...

         * * *

      2. 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...

         
         

      3. Signs for which permits are not required under s. 479.16.

      
      

   10. The provisions of Section 479.16, Florida Statutes, contain no exception to the permitting requirements that are pertinent to this proceeding. Because the subject sign was located within 660 feet of a primary-aid federal highway in an area zoned "Agricultural District", the location of the sign does not meet the permitting criteria contained in Section 479.111(2), Florida Statutes.

       
       

   11. 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 depart- ment, 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 department 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 ...

   12. The evidence in this case establishes that the permit required by law was not granted for the subject sign, and that Respondent's sign was located in an area that is ineligible for a permit. The provisions of Section 479.105, Florida Statutes, providing for the immediate removal of such sign, after appropriate notice, are applicable, and therefore, the removal of the Respondent's sign was required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order which finds that the permit required by law was not issued for the Respondent's sign, that the sign was in a location that is ineligible for permitting because of its zoning, and which confirms the removal of the subject sign.

RECOMMENDED this 1st day of October, 1990, in Tallahassee, Leon County, Florida.

DONALD D. CONN

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3897T

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding 1.

2. Adopted in Finding 2.

3. Adopted in Finding 3.

4. Adopted in Finding 2.

5. Adopted in Finding 4.

6. Adopted in Findings 1, 2 and 5.

7. Adopted in Finding 2.

8. Adopted in Finding 3.

9. Adopted in Finding 5.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Julian L. Mesa, Secretary

J.C. Tropical Foods, Inc. 2937 S.W. 27th Avenue, #305 Miami, FL 33133

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 90-003897

Orders for Case No: 90-003897