STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1923T

)

HAROLD R. LEE, D.C., P.A., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above styled case in the Right of Way Office Conference Room, 1317 N.E. Fourth Avenue, Fort Lauderdale, Florida at 2:00 p.m., January 13, 1976 before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter arose upon the Administrative Complaint and notice of the Petitioner, Department of Transportation, to the Respondent, Dr. Harold R. Lee, D.C., alleging that the Respondent had violated Sections 339.301(1) and 335.13(2), Florida Statutes, by constructing and maintaining an advertising sign within the state owned right of way of U.S. 1.

APPEARANCES

For Petitioner: Philip Bennett

Department of Transportation

For Respondent: Walter Purdy

Consulting Engineer

Leeside Professional Building Key Largo, Florida

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Edward Cundy, witness for the Department of Transportation, testified that he had inspected the subject sign and identified a photograph thereof, identified and received as Exhibit 1. It was admitted by the Respondent that said sign was within the state-owned right of way.

   
   

2. The Respondent contended that said sign was not an advertising sign, but was a building directory sign which was a "directional" sign.

   
   

3. The question presented is whether the construction and maintenance of the sign within the state right of way is in violation of Sections 335.13(2) or 339.301, Florida Statutes.

4. Addressing the provisions of Section 339.301, F.S., said provision is a penal provision violation of which is punishable as a misdemeanor of the second degree.

   
   

5. Turning to the provisions of Section 335.13(2), F.S., said provision is not penal, and provides in pertinent part as follows:

   
   

   "(2) No person shall erect any billboard, advertisement, advertising sign, advertising structure or light within the right of way limits of any road in the state road system. "

   
   

6. Mr. Cundy testified that said sign was located within the right of way of U.S. 1, which is a part of the state road system. The Petitioner did not controvert this, but admitted having erected said sign as a portion of the construction of his building.

   
   

7. Having examined the sign contained in Exhibit 1, the Hearing Officer finds that said sign constitutes a structure of the type prohibited by Section 335.13(2), F.S.

   
   

8. The purpose of Section 335.13(2), F.S., is to prevent structures from being erected in the right of way which constitutes potential hazards or distractions to persons upon the travelled way of the state's roads. While there is no statutory definition of advertisement, the definition of advertise contained in Webster's New Collegiate Dictionary, 1975 Edition, is a follows:

   
   

   "1: to make known 2 a: to make publicly and generally known, b: to announce publicly esp. by a printed notice or a broadcast, c: to call public attention to esp. by emphasizing desirable qualities so as to arouse a desire to buy or patronize. "

   
   

9. The definition contained in the same reference of advertisement is as follows:

   
   

   "1: the act or process of advertising 2: a public notice;..."

   
   

10. While the Hearing Officer finds that said sign does not call public attention for the purpose of emphasizing desirable qualities to arouse a desire to buy or patronize, the directory contained on the sign and the name of the complex is a public notice of the location of said complex and the occupants thereof.

    
    

11. The Hearing Officer notes Respondent's argument that there are other structures within the right of way, to include power or telephone poles. The Hearing Officer is unaware of any statute which prohibits such poles within the right of way.

    
    

12. Wherefore, the Hearing Officer concludes that the Respondent is in violation of Section 335.13(2), F.S.

RECOMMENDED ORDER

The Hearing Officer, based on the foregoing findings of fact and conclusions of law, recommends that the Department of Transportation direct the immediate removal of said sign.

Regarding the alleged violation of Section 339.301, F.S., there being no administrative remedy provided in said section, the only action which can be taken is the assessment of the criminal penalty which is beyond the authority of the Hearing Officer to recommend or the head of the agency to direct.

Therefore, said provision shall not be applied to the facts, and the Hearing Officer recommends that said charge be stricken from the charges.

DONE and ORDERED this 22nd day of January, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Dr. Harold R. Lee, D.C. 16683-96 Overseas Highway Key Largo, Florida 33037

Docket for Case No: 75-001923

Orders for Case No: 75-001923