STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1415T

)

MILLER OIL COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-styled case at the District Office Conference Room, Chipley, Florida, on December 12, 1975, after due notice to the parties before the undersigned hearing officer.

APPEARANCES

For Petitioner: Phillip Bennett, Esquire

Office of Legal Operations Department of Transportation

For Respondent: Curtis A. Miller, Jr., Esquire

324 West Highway 90 Bonifay, Florida

ISSUE PRESENTED

Whether Respondent has violated Section 479.07(1)(4)(6) and 479.11(1), Florida Statutes.

Respondent is a corporation and did not have counsel present at the hearing. In the light of Rule 14-6.03, Florida Administrative Code, which provides that all entities created by law shall be represented by counsels Mr. Miller was not permitted to represent the corporation at this hearings however, he was advised that if he so desired he could testify as a witness. He elected to do so during the proceedings.

At the hearing Petitioner's representative moved to withdraw the allegation of a violation with regard to Respondent's sign on Interstate Highway I-10 located 1.8 miles east of State Road 81 on the north side. The amendment of the petition was granted.

FINDINGS OF FACT

1. The sign in question is on Interstate Highway I-10, .9 miles east of State Road 81 on the north side, and 18 feet from the I-10 right-of-way fence which in turn is located within 6 inches of the right-of-way. The text of the sign provides directions to a Fina gasoline station. The outdoor advertising

   inspector of District III has observed Mr. Miller at this station in the past. The inspector established the precise location of the sign and took a photograph thereof on December 10, 1975. The sign is not in a zoned or unzoned commercial or industrial area as evidenced by observation of the inspector and a sketch of the area prepared by him together with a general highway map of the Florida State Road Department establishes that the sign is not located within the city limits of Ponce de Leon, Florida, or any other incorporated city or town. No state permit tag issued by the Department of Transportation was affixed to the sign at the time of its inspection on December 10, 1975. Although Respondent has previously submitted an application for a permit it was not issued because the sign was in violation of existing law and regulations as determined by the Department (Testimony of Williams, Jordan; Exhibits 1, 2 & 3)

   
   

2. Respondent's service station is south of Interstate Highway I-10 and at the time it was leased the land owner informed the Respondent's representative that its location was within the city limits of Ponce de Leon. In like manner, Respondent learned by hearsay that the area that he leased for his sign was also in the city limits. Respondent was under the impression that the problem was that his sign was located in an unzoned area. Mr. Miller testified that Exhibit

   1 accurately depicted his sign and that Exhibit 2, its location and conceded that he had applied for a permit which was denied and that he presently did not have a permit for the sign which was built in the spring of 1975 (Testimony of Mr. Miller).

   
   

   CONCLUSIONS OF LAW

   
   

3. Respondent is alleged to have violated Section 479.07(1)(4)(6) and Section 479.11(1), Florida Statutes.

   
   

4. The evidence establishes that Respondent violated Section 479.07(1) by erecting a sign which is located outside of any incorporated city or town without first obtaining a permit therefor from the Department of Transportation. The fact that Respondent was under the erroneous impression that the sign had been placed within the corporate limits of Ponce de Leon, Florida is irrelevant to the question of whether or not a violation of the statute, in fact, was committed.

   
   

5. Section 479.07(4) provides that for every permit issued, the Department shall deliver to the Petitioner a serially numbered metal permit tag which must be attached to each advertising structure or sign which he owns and which is required to be permitted. It further provides that failure of signs to have such tags affixed thereto is prima facie evidence that the structure or sign is in violation of Chapter 479, F.S. This provision also prohibits painting, altering, mutilating, defacing, or changing the color of any such tags, prohibits anyone other than the owner of the tag or his lawful representative from removing it from the thing to which it has been affixed, and provides that violation of the provision is a misdemeanor of the second degree. The thrust of this statutory provision is to insure that once a permit tag is received, it is affixed properly. The law also is designed to deter others from committing acts which would impede the recognition by enforcement personnel of the fact that signs are authorized by the presence of permit tags. The requirement to attach the permit tags to signs only applies to a "permittee" who has been delivered such a tag or tags upon the issuance of the permit. Since Respondent never became a "permittee", it is concluded that it has not violated this provision.

   
   

6. Section 479.07(6) provides that no person shall erect or cause to be erected an advertising structure, advertising sign or advertisement upon the

   property of another without first securing the written permission of the owner or lessee of said property and applying for and receiving a current permit tag. This provision is obviously designed to preclude individuals from trespassing upon the land of another by the placement of signs and structures without permission. It is not considered applicable to Respondent because there has been no showing that it did not have the permission of the owner or lessee of the property where the signs are located to use it for advertising purposes.

   
   

7. Section 479.11(1) provides in pertinent part that no advertisement, advertising sign, or advertising structure shall be constructed, erected, used, operated or maintained within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in Section 479.111. Section 479.111 provides that directional or official signs, signs in zoned and unzoned commercial and industrial areas, and advertising at safety rest areas as authorized by the department, are permitted within control positions of the interstate and federal-aid primary systems. The evidence establishes that Respondent placed its sign within 660 feet of the nearest edge of the right-of-way of Interstate Highway I-10 in violation of Section 479.11(1).

   
   

8. Although it has been concluded above that Respondent is in violation of Chapter 479 as indicated, it should be pointed out that the evidence leads to the further conclusion that there was no intent on the part of Respondent to violate that law and it appears he was under the mistaken assumption that his sign was in an area which did not require state permits.

RECOMMENDED ORDER

It is recommended that the Department of Transportation pursuant to the authority contained in Section 479.17, Florida Statutes, remove the advertising sign owned by Respondent which is located on Interstate Highway I-10, for violations of Section 479.11(1) and Section 479.07(1), Florida Statutes.

DONE and ENTERED this 8th day of January, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. O. E. Black

Administrator of Outdoor Advertising Department of Transportation

Hayden Burns Building Tallahassee, Florida

Miller Oil Company, Inc. Highway 90 West

Bonifay, Florida

Docket for Case No: 75-001415

Orders for Case No: 75-001415