STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1418T

)

CIRCLE D. RANCH, )

)

Respondent. )

) STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1419T

)

ARROWHEAD CAMPSITES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-styled cases 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 S. Bennett, Esquire

Office of Legal Operations Department of Transportation

For Respondent: Richard Wayne Grant, Esquire

Post Office Box 209 Marianna, Florida 32446

ISSUE PRESENTED

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

At the hearing, it was announced that the signs in question are owned by a partnership known as Henderson Signs, Don Henderson and Gene Henderson being partners thereof. It was stipulated that the above-captioned cases would be consolidated for hearing and that Henderson Signs had been notified of the violations and was prepared to proceed with a hearing. The stipulation was accepted by the hearing officer and the caption of the case amended to show Henderson Signs as Respondent.

FINDINGS OF FACT

1. It was stipulated by the parties that the two signs in question are owned by Respondent and are located as indicated on Exhibit 3 as follows: The Circle D. Ranch sign is located 9/10 of a mile east of the east lane of State Highway 81 and 85 feet south of the right-of-way fence of Interstate Highway I-

1. The Arrowhead Campsite sign is located 1.1 miles east of the east lane of State Highway 81 and 190 feet south of the right-of-way fence of Interstate Highway I-10 (Exhibits 1,2,3 & 4, Testimony of Williams, Jordan).

   
   

   1. No state permit tags are affixed to the signs and they are not located in a zoned or unzoned commercial area as determined by physical observation (Testimony of Mr. Williams).

      
      

   2. The signs are located outside any incorporated city or town (Exhibits 3 & 4, late-filed Composite Exhibit 5, Testimony of Mr. Williams, Mr. Jordan).

      
      

      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 the two signs which are located outside any incorporated city or town without first obtaining permits there for from the Department of Transportation. It was stipulated at the hearing that supplementary evidence as to the city limits of Ponce de Leon Florida, would be submitted as a late-filed exhibit. Composite Exhibit 5 was submitted by Petitioner pursuant to the stipulation and consists of Department of Transportation right-of-way maps with the city limits of Ponce de Leon, Florida plotted thereon as determined from a search of the records in the office of the Holmes County Circuit Court Clerk. It is represented by Petitioner's counsel that this is the only description of the territorial limits which is recorded and which is the same description filed in the office of the Secretary of State on May 8, 1963. Although the documents contained in this Exhibit are not authenticated as official by the Holmes County Circuit Court Clerk, they are, in conjunction with testimony at the hearing and Exhibit 3, considered to constitute competent evidence of the pertinent city limits and the fact that Respondent's signs are not located within such limits, in the absence of any rebuttal evidence by Respondent.

      
      

   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 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 two signs within 660 feet of the nearest edge of the right-of-way of Interstate Highway I-10 in violation of Section 479.11(1).

RECOMMENDED ORDER

It is recommended that the Department of Transportation pursuant to the authority contained in Section 479.17, Florida Statutes, remove the two advertising signs owned by Respondent which are located on Interstate Highway I-

10 for violations of Section 479.11(1) and Section 479.07(1), Florida Statutes.

DONE and ENTERED this 19th 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:

Richard Wayne Grant, Esquire Box 209

Marianna, Florida 32446

Phillip S. Bennett, Esquire Office of Legal Operations Department of Transportation Hayden Burns Building Tallahassee, Florida

Docket for Case No: 75-001418

Orders for Case No: 75-001418