STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-1833T

)

BERLIN SIGN COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 22nd, 1977, in the Conference Room of the Department of Transportation District Office in Bartow, Florida, by Stephen F. Dean assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on an Administrative Complaint filed by the Department of Transportation against the Berlin Sign Company alleging that the Berlin Sign Company had four nonpermitted signs located on US 41 in Sarasota County, Florida. Two of these signs lacked permits and two of these signs had the delinquent permits for the wrong size of sign to which they were affixed, the signs having been enlarged after the permits were obtained in 1973.

APPEARANCES

For Petitioner: John Rimes, Esquire

Department of Transportation

For Respondent: Berlin Sign Company was not represented.

FINDINGS OF FACT

1. Notice in this case was given to Berlin Sign Company by the Division of Administrative Hearings dated November 7th, 1977, for a hearing on November 22nd, 1977. Berlin wrote a letter dated November 18th, 1977, and postmarked November 19th, 1977, advising that he would be unable to attend because be would be out of state on November 22nd, 1977, and requesting that the hearing be rescheduled. No other cause was stated. This letter was received by the Division of Administrative Hearings on November 28th, 1977, having been addressed to the Florida Department of Administration. No record of any other contact by Mr. Berlin with the Division of Administrative Hearings exists. Mr. Berlin was not present at the formal hearing.

   
   

2. Berlin Sign Company owns four signs located in Sarasota County, Florida, 15 feet off the right of way. Two of these signs do not have permits. The other two have 1973 permits which are now delinquent for signs that are smaller than the now existing signs. These signs are located outside any incorporated area and in an area zoned agricultural.

   CONCLUSIONS OF LAW

   
   

3. Chapter 120, Florida Statutes, requires that a party to an administrative hearing receive 14 days notice of a hearing. Notice in this case was dated November 7th, 1977, for the November 22nd, 1977, hearing. This notice states that continuances shall be granted only for good cause shown prior to the hearing. In this instance, Mr. Berlin wrote a letter requesting the hearing be rescheduled because he was to be out of state on November 22nd, 1977. This letter was dated November 18th, postmarked November 19th, and received by the Division of Administrative Hearings on November 28th, 1977, because of the incorrect address used by Mr. Berlin. Had the letter been received, however, the fact that Mr. Berlin was to be out of state would not constitute good cause for a continuance. Courtesies extended to all parties would have probably resulted in a continuance had Mr. Berlin had a reasonable cause for not being in the state and had he contacted this office as soon as possible by the fastest means possible to request a continuance. As it was, the hearing had been held before Mr. Berlin's letter was received by the Division of Administrative Hearings due to the improper address used by Mr. Berlin. The notice was adequate and the request for a continuance untimely and for insufficient cause.

   
   

4. Section 479.07, Florida Statutes, requires that a licensee obtain a permit prior to erection of an outdoor advertising sign and to renew every permit annually.

   
   

5. The licensee had erected two signs without permits, and had not renewed the permits on two existing signs, although these two signs had been enlarged by the licensee. All of these signs were signs not conforming to present standards set by the rules and regulations of the Department of Transportation, and an application for these signs could not be approved today to erect these signs.

   
   

6. Section 479.07, supra, makes no provision for the payment of delinquent fees. The Statute provides that a permit must be obtained prior to its erection, renewed annually and if not renewed, the old permit returned to the Department of Transportation. If the licensee is unable to renew or return the permit, an affidavit must be prepared accounting for the permit. The thrust of the law is that there are no delinquent fee provisions because signs exist with current permits or they do not exist at all. This purpose is further apparent when one considers that a present application for these signs could-not be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer

RECOMMENDS:

That the signs be removed.

DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

John Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. John Berlin Berlin Sign Company

264 Bahama Street Venice, Florida 33595

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

Docket for Case No: 77-001833

Orders for Case No: 77-001833