STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, ) STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1060T

)

HENDERSON SIGN SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on October 6, 1978 in Chipley, Florida.

APPEARANCES

For Petitioner: Frank H. King, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

For Respondent: James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446

The Florida Department of Transportation ("DOT") issued an Alleged Violation of Chapter 479 Florida Statutes and Notice to Show Cause (petition) against Respondent, Henderson Sign Service, on May 3, 1978. On May 9, 1978, Respondent requested an administrative hearing pursuant to the provisions of 120.57, Florida Statutes. Thereafter, in accordance wish the provisions of 120.57(1)(b)(3) Florida Statutes, DOT requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notice dated August 30, 1978.

In the petition DOT alleged that a sign owned by Respondent and located 1.5 miles east of State Road 276 on Interstate Highway 10 in Jackson County, Florida, was in violation of 479.07, Florida Statues and Rule 14-10.04, Florida Administrative Code in that it failed to have the required permit. In addition, DOT alleged that the same sign violated Rule 14-10.05, Florida Administrative Code in that it violated the setback requirement of that regulation.

At the final hearing, DOT called Jim Williams and Donald Gene Henderson as its witnesses. The Respondent called James E. Jordan as its only witness. No exhibits were offered into evidence.

FINDINGS OF FACT

1. Respondent, Henderson Sign Service, erected and owns a sign located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida. The sign is visible from the main traveled portion of Interstate Highway 10. At the time of the filing of the petition in this cause, and as recently as October 2, 1978, no permit tag was affixed to the sign structure.

   In addition, the sign structure is located 123 1/2 feet from the white line on the highway at the outside edge of the eastbound lane. At all times material to this proceeding the sign in question bore advertising copy which read "Plantation House, pool, bus tour, restaurant, Quality Inn". Respondent had not applied to DOT for the issuance of a permit for the sign in question as of the date of the hearing in this cause.

   
   

2. Any proposed finding of fact submitted by the Respondent and not incorporated in this Recommended Order was either rejected or deemed irrelevant.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 479.07, Florida Statutes, prohibits the construction, erection, operation, use or maintenance of an outdoor advertising structure outside any incorporated city or town without first obtaining a permit from DOT. That section also prohibits the construction, erection, operation, use or maintenance of any outdoor advertising structure within any incorporated city or town without applying to DOT for a permit for that structure. These same requirements are contained in Rule 14-10.04(1) and (2) Florida Administrative Code.

   
   

4. Rule 14-10.05, Florida Administrative Code prohibits the construction, erection, use, operation or maintenance of an advertising sign or structure within 660 feet of the nearest edge of the right-of-way of any portion of Interstate Highway 10.

   
   

5. Section 479.17, Florida Statutes, provides, in part, that:

   
   

   Any advertisement, advertising sign or advertising structure which is constructed, erected operated, used, maintained, posted, or displayed in violation of this chapter is hereby declared to be a public and private nuisance and shall be forthwith removed, obliterated, or abated by the department. . .

   
   

6. At all times material to this proceeding, the advertising sign or structure owned by Respondent, Henderson Sign Service, and located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida, was in violation of section 479.07, Florida Statutes, and rules 14-10.04 and 14-10.05, Florida Administrative Code.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a final order be entered by the State of Florida, Department of Transportation finding that the sign in question in this proceeding is a public and private nuisance and should be removed, obliterated or abated.

RECOMMENDED this 2d day of January, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

James P. Appleman, Esquire Post Office Box 385 Marianna, Florida 32446

Docket for Case No: 78-001060

Orders for Case No: 78-001060