STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1386T

)

INDIAN RIVER BEVERAGE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled case came up for hearing before Delphene C. Strickland, Rearing Officer, Division of Administrative Hearings, Department of Administration, the Right of Way Office, 1317 N.E. Fourth Avenue, Fort Lauderdale, Florida, on the 20th day of September, 1977, commencing at 2:15 o'clock p.m.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire For Respondent: Martin K. Hawthorne

FINDINGS OF FACT

1. A notice was sent to the Respondent on the 11th day of May, 1977, alleging violation of Section 479.07(1), 479.11(1), Florida Statutes, for the reason that the sign owned by the Respondent had no permit attached thereto and was located within 15 feet of the right of way of the secondary road.

   
   

2. Respondent's sign is painted on a guard rail which had been erected in front of the residence which stood at the east/west end of the intersection or "T" of State Road 707 and State Road 707A.

   
   

3. The copy on the sign which was in two parts read: "Indian River Beverage Deli Take-out Catering" and a telephone number "333-5600--1 1/2 miles South" with an arrow indicating a southerly direction.

   
   

4. The immediate area of the residence protected by the guard rail includes a parking lot and a trailer park.

   
   

5. The sign advertises the business of the Respondent located 1 1/2 miles from the zone. The sign is approximately 6 feet from the edge of the pavement of the secondary road. No permit was applied for or secured before the sign was painted on the guard rail.

   
   

6. Petitioner contends that the sign must be removed inasmuch as it sits less than 15 feet from the edge of the paved secondary road and that no permit was applied for or secured. Respondent contends that he assumed that the owner

   of the guard rail had gotten a permit to erect the guard rail and that the guard rail was erected to protect the house inasmuch as the house had been invaded by traveling automobiles seven times in seven years. He further contended that the sign was all dirty and rusty, and he made an agreement with the owner of the property to paint the sign and that it was sandblasted, cleaned up and painted in white and made traveling on the state road safer as well as advertising his establishment.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 479.11 Certain Outdoor Advertising Prohibited -- provides in part:

   
   

   "No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   
   

   1. 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 s. 479.111, or within 15 feet of the outside boundary of any other federal or state highway or within 100 feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, or railroad intersection outside the limits of any incorporated city or town."

      
      

8. The foregoing Statute requires that a sign erected on a secondary road be no closer than 15 feet of the outside boundary of any other federal or state highway. These two highways involved in this cause are state secondary roads.

Section 479.07 Individual Devise Permits, Fees, Tags.

"(1) Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first

obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided."

The foregoing Statute requires the sign owner to apply for and secure a permit from the Petitioner, Florida Department of Transportation, before the sign is erected. No such application was made or permit secured.

RECOMMENDATION

Remove the sign unless it has been removed within five (5) days after final order is issued.

DONE and ENTERED this 19th day of December, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

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

Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Martin K. Hawthorne

Indian River Beverage, Inc. 2222 Indian River Drive Jensen Beach, Florida 33457

Docket for Case No: 77-001386

Orders for Case No: 77-001386