STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1659T

)

HARRY MOODY SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held at 1:45 p.m. on October 11, 1977 in the Department of Transportation's District Office Conference Room, 801 North Broadway, Bartow, Florida, before Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: William D. Rowland, Esquire

115 East Morse Blvd.

Winter Park, Florida 32790

ISSUE

Whether the subject signs of Respondent should be removed.

FINDINGS OF FACT

1. A notice of violation and a notice to show cause was sent to the Respondent, Harry Moody Signs and delivered on September 13, 1977 alleging violations of Chapter 479, Florida Statutes and violations of Rule 14-1O.4.

   
   

2. The violation notice was marked Petitioner's Composite Exhibit 1 and entered into evidence. The notice cited six signs and for clarity the Hearing Officer numbered the signs from one through six on the violation notice. Testimony and evidence was taken on each sign as follows:

   
   

   1. Sign One: This sign was withdrawn from consideration by consent of both parties.

   2. Sign Two: The parties agreed that a permit would be issued for this sign within the city limits of Weeki-Wachee, Florida providing it

      was removed from the state's right-of-way and moved back some 51 feet.

   3. Sign Three: This double faced sign has no permit. The sign consists of a small sign stating "This is Beacon Country" which is attached to and on the top of a large sign

      that states "See ten different models, Beacon Woods, Beacon Homes by Hoeldtke";

      on the poles at the bottom of the signs is a third sign reading "P G A Golf-Restaurant- Shopping Turn Right."

   4. Sign Four: This sign has an expired 1972 permit tag attached to it.

   5. Sign Five: This sign has no current permit tag attached thereto.

   6. Sign Six: This sign has no current permit or 1974 tag attached thereto. The Respondent admitted that this sign was in violation of

      the outdoor advertising law.

      
      

3. The Respondent disclaimed any interest in Sign One and the Petitioner moved to withdraw the charges.

   
   

4. Sign Two is located on the state's right-of-way and is within the city limits of Weeki-Wachee. It was stipulated that the sign would be removed or relocated within 20 days from date of the hearing but the Respondent has not so notified the Hearing Officer of removal.

   
   

5. The double faced sign marked as Sign Three was the subject of argument by both attorneys who requested to submit & memorandum of law as to whether the sign was in violation of Section 479.16(3). No memorandum of law has been received from either attorney although the 30 days allotted to submit said memorandum has expired.

   
   

6. Signs marked Four and Five have no current permit tag attached thereto.

   
   

7. The Respondent admitted that there was no current permit for Sign number Six and the sign was in violation. The parties agreed that the sign may not be eligible for a permit.

   
   

   CONCLUSIONS OF LAW

8. Section 479.07, Individual Device Permits; Fees; Tax.- provides: "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 structure, 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. Any person who shall construct, erect, operate, use or maintain, or cause or permit to be constructed, erected, operated, used, or

   maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department. A permanent permit tag of the kind hereinafter provided shall be issued by the department without charge and shall be

   affixed to the sign in the manner provided in subsection (4). . ."

   
   

9. Each of the subject signs are in violation of the foregoing Statute inasmuch as a current permit is not attached thereto.

10. Section 479.16 Certain Advertisements Excepted.- provides as follows: "The following advertisements, advertising

    signs and the advertising structures, or

    parts thereof, upon which they are posted or displayed, are excepted from all the provisions of this chapter except those contained in Sec. 479.11(3)-(5)."

    (Sec. 479.11(3)-(5) not applicable)

    * * *

    (3) Those upon real property posted or displayed by the owner or by the authority of the owner, stating that real property is for sale or rent, but if said advertisement carries any other wording not pertaining to said property, then the same shall he subject to the conditions of Sec. 479.07(2);"

    
    

11. Signs designated in the foregoing section two, as sign Three, are in violation of the foregoing Statute. Neither side of the double faced sign states "that real property is for sale or rent". The sign erected as a three part sign was erected without complying with Section 479.07(1) and (2), no application was made or permit granted before the signs were erected.

    
    

12. The top sign contains the slogan "This is Beacon Country" and does not particularly refer to any real property that is for sale or rent. The center large sign has no wording stating that the real property is for sale or for rent. The bottom sign advertises a golf course, a restaurant and shopping center and gives directions to reach those commercial centers. Each sign violates Section 479.16, F.S.

RECOMMENDATION

Remove each of the subject signs designated; Sign Two, Three, Four, Five and Six.

Invoke the penalties provided for by Section 479.18 to wit: "479.18 Penalties. - Any person, violating

any provision of this chapter whether as

principal, agent or employee, for which violation no other penalty is prescribed,

shall be guilty of a misdemeanor of the second degree, punishable as provided in Sec. 775.083; and such person shall be guilty of a separate offense for each month during any portion of which any violation of this chapter is committed, continued or permitted. The existence of any advertising copy on any outdoor advertising structure or outdoor advertising sign or advertisement outside incorporated towns and cities shall constitute prima facie evidence that the said outdoor advertising sign or advertisement was constructed, erected, operated, used, maintained or displayed with the consent and approval and under the authority of the person whose goods or services are advertised thereon."

DONE AND ENTERED this 8th day of February, 1978, 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

William D. Rowland, Esquire

115 East Morse Blvd.

Winter Park, Florida 32790

Docket for Case No: 77-001659

Orders for Case No: 77-001659