STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALUSA CAMPGROUND CONDOMINIUM ASSOCIATION, INC.,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 12-1855

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RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference between Miami and Tallahassee, Florida, on August 31, 2012, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michael Healy, Esquire

The Silver Law Group, P.A. Post Office Box 710 Islamorada, Florida 33036

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the subject sign, owned by Calusa Campground Condominium Association, Inc. (Calusa), is illegally erected because it is (1) located in the right-of-way of the Florida Department of Transportation (the Department) on U.S. Highway 1 in Monroe County, Florida, and/or (2) it does not have a required permit.

PRELIMINARY STATEMENT

On February 23, 2011, the Department notified Calusa that its sign located on U.S. Highway 1 in Monroe County, Florida, was located in the Department's right-of-way and did not have a required permit. The Department's notice contained a demand that the sign be permanently removed. On July 10, 2012, the department served on Calusa an amended notice of violation that demanded that the sign be removed. Thereafter, Calusa timely requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, the Department called two of its employees, Michael Green (Outdoor Advertising Office Operations Supervisor) and Mark Johnson (Outdoor Advertising Control Inspector), as witnesses. The Department offered five consecutively-numbered exhibits, each of which was admitted into evidence. Calusa presented no witnesses and no exhibits.

A Transcript of the proceedings, consisting of one-volume, was filed on October 12, 2012. The Department timely filed its Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order.

Calusa did not file a proposed recommended order.

All statutory references are to Florida Statutes (2012), and each reference to a rule is to the rule as published in Florida Administrative Code as of the date of this Recommended Order.

FINDINGS OF FACT

1. The Department is an agency of the State of Florida responsible for regulating outdoor advertising signs within 660 feet of certain road systems, including federal-aid primary highways.

2. Calusa is the owner of the subject sign, which is located in Monroe County, Florida, on U.S. Highway 1.

3. The subject sign is located in the Department's right- of-way.

4. U.S. Highway 1 in Monroe County is a federal-aid primary highway, and it has been designated as a scenic highway.

5. With the exception of an "on-premises sign," a permit issued by the Department is required for signs located within 660 feet of a federal-primary highway. The subject sign is not an "on-premises sign." A permit is required for the subject

   
   

   sign. The subject sign does not have the required permit.

   
   

6. Calusa was issued a "Notice of Violation - Illegally Erected Sign in Right of Way" on February 23, 2011, and an "Amended Notice of Violation - Illegally Erected Sign in Right of Way" on July 10, 2012. The violations were based on two reasons: (1) the sign lacks required permits, and (2) the sign is unlawfully in the Department's right-of-way. Both notices contained the following:

   This sign is illegal and must be removed within 10 days from the date of this Notice, pursuant to s. 479.107(1), F.S. If it is not removed within that time, it will be removed and disposed of by the Department without further notice.

   
   

   PLEASE NOTE: If the sign is removed by the Department, all costs associated with the removal will be assessed against the sign owner. . . .

   
   

   CONCLUSIONS OF LAW

   
   

7. DOAH has jurisdiction over the subject matter of and the parties to this case pursuant to sections 120.569 and 120.57(1).

8. As the party seeking to enforce its Notices of Violation, the Department bears the duty to go forward with the evidence and the burden of proving the facts underpinning the Notices of Violation by a preponderance of the evidence. See Dep't of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Dep't of HRS v. Career Serv. Comm'n, 289

   
   

   So. 2d 412, 415 (Fla. 4th DCA 1974); § 120.57(1)(j), Fla. Stat.

   
   

9. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

10. The Department has the authority to regulate outdoor advertising and issue permits for signs along federal-aid primary highways pursuant to chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10.

11. Section 479.105(1) provides as follows:

    
    

    1. Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained 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.

       
       

12. Section 479.07(1), provides as follows:

    
    

    1. Except as provided in ss. 479.105(1)(e) and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an urban area, as defined in s. 334.03(31), or on any

       
       

       portion of the interstate or 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. As used in this section, the term "on any portion of the State Highway System, interstate, or federal-aid primary system" means a sign located within the controlled area which is visible from any portion of the main- traveled way of such system.

       
       

13. Section 479.11(8), provides as follows:

    
    

    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.

    
    

14. The Department established that the subject sign is located on a federal-aid primary highway without a required permit. The Department also established that the subject sign is located on the Department's right-of-way.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order finding that the subject sign is illegal and ordering its removal.

DONE AND ENTERED this 6th day of November, 2012, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2012.

COPIES FURNISHED:

Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Michael Healy, Esquire

The Silver Law Group, P.A. Post Office Box 710 Islamorada, Florida 33036

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation Mail Station 58

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399

Gerald B. Curington, General Counsel Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

Ananth Prasad, Secretary Department of Transportation Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 12-001855

Orders for Case No: 12-001855