STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1575T

)

NUGGET OIL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-styled case, at the District Office Conference Room, Chipley, Florida, on November 10, 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: Paul H. J. Mosier, President

Nugget Oil, Inc. Post Office Box 216

Crestview, Florida 32536 ISSUE PRESENTED

Whether Respondent had violated Section 479.07(1),(4),(6) and 479.11(1),

F.S.

Respondent sought a continuance at the hearing based on the fact that its'

president, Mr. Mosier, was unaware that the proceedings were to be of a formal nature and legal counsel for the corporation was not in attendance. After inquiry by the Hearing Officer, it was established that Respondent had contacted its legal counsel prior to the hearing after receiving the notice of alleged violations, and notice of hearing in which it was stated that all parties have the right to be represented by counsel and other matters which reasonably put the Respondent on notice as to the nature of the proceedings. The hearing was recessed briefly to permit Respondent's president, Mr. Mosier, to again contact legal counsel and determine whether he wished to proceed with the hearing.

After the hearing was reconvened, Mr. Mosier stated that counsel had advised him to attempt to secure continuance, but if he was not successful, to represent the Respondent himself. The request for a continuance was denied for lack of good cause and Respondent was thereafter represented by Mr. Mosier.

In view of absence of Respondent's legal counsel, the Hearing Officer advised Mr. Mosier concerning the rights of the Respondent and also in view of

the fact that the alleged violations of the pertinent statute constitute grounds for criminal prosecution, also advised him that he did not have to testify unless he so desired and that if he did so, he could be cross-examined by counsel for Petitioner.

FINDINGS OF FACT

1. It was stipulated by the parties that Exhibits 1 and 2 are photographs depicting the signs of the Respondent that are the subject of the allegations of statutory violations.

   
   

2. One of the signs (Exhibit 1) is located 9/10 of a mile west of state road 81 on the south side of Interstate Highway I-10. It is located approximately 15 1/2 feet from the edge of the right-of-way of 1-10. The other sign (Exhibit 2) is 1 4/10 of a mile east of state road 81 on the north side of Interstate Highway I-10. It is located approximately 16 feet from the edge of the right-of-way of I-10 (testimony of Mr. Jordan).

   
   

3. The two signs, which are commercial in nature, are located outside the limits of any incorporated city or town and are not in zoned or unzoned commercial or industrial areas (testimony of Mr. Jordan).

   
   

4. The limits of Ponce de Leon, Florida, generally are located approximately one mile away from the sign locations (testimony of Mr. Jordan; Exhibits 1,2,5,6).

   
   

5. Prior to the erection of the signs, the Respondent leased the property where they are presently located after contacting the Mayor of Ponce de Leon, Florida, who advised him that the leased property was located within the city limits of Ponce de Leon. By application dated August 19, 1975, Respondent applied for a state permit for the Signs. This application was denied by Petitioner on August 28, 1975, because the signs were deemed to be in violation of Section 479.11(1), F.S., as being within 660 feet of the Interstate Highway right-of-way (testimony of Mr. Jordan; and Mr. Mosier).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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 therefor from the Department of Transportation. Although the evidence reflects that Respondent applied for such permits from the department after having been notified of alleged violations, the permits were denied by reason of improper location of the signs. The fact that Respondent's President was under the erroneous impression that the signs had been placed within the corporate limits of Ponce de Leon, Florida, is irrelevant to the question of whether or not violations of the statute, in fact, were committed.

   
   

8. 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 the 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.

   
   

9. 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.

   
   

10. 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).

    
    

11. 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 signs were 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 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 24th day of November, 1975, 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

Nugget Oil, Inc.

P. O. Box 216

Crestview, Florida 32536

Docket for Case No: 75-001575

Orders for Case No: 75-001575