STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2368T

)

HENDERSON SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice' on May 3, 1979, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case arose on a Notice of Violation filed by the Department of Transportation against Henderson Signs alleging its subject sign was in violation of Section 479.07 and Section 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

APPEARANCES

For Petitioner: Frank H. King, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446 FINDINGS OF FACT

1. The parties stipulated that Henderson Signs maintains the sign in question located 1.4 miles east of State Road 71 on Interstate 10.

   
   

2. The Department's inspector stated that this sign is visible from the main-traveled way of the place known as Interstate 10 in Jackson County. The inspector stated that be had inspected the sign on July 21, 1978, and on May 2, 1979. He stated that on inspection this sign bore a permit of the type described in Section 479.07, Florida Statutes. He further stated that too his knowledge the sign was constructed during the month of July, 1978.

   
   

3. The Department's surveyor testified that the subject sign was located

   140 feet from the cement slab on the Place known as Interstate 10 in Jackson County.

4. The Department failed to submit any substantial and competent evidence that the place known as Interstate 10 in Jackson County has been designated by the Department as a part of the Interstate Highway System and approved by the appropriate federal authorities. Further, the Department failed to produce any substantial and competent evidence that the place known as Interstate 10 in Jackson County at the point where the sign is located is open to public vehicular traffic.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Department has charged that the subject sign violates Sections

   479.07 and 479.11, Florida Statutes, and further that the subject sign violates Rules 14-10.04 and 14-10.05, Florida Administrative Code.

   
   

6. To prove a violation of Section 479.07, Florida Statutes, it must be shown that the sign exists along a state highway. To prove a violation of Section 479.11, Florida Statutes, it must be shown that the sign exists along an interstate highway. The Notice of Violation alleges that the sign exists along an interstate highway. In the instant case, only hearsay evidence was introduced concerning the designation of the place known as Interstate 10 as a portion of the Interstate Highway System and its approval by the appropriate federal authorities.

   
   

7. The Department also failed to produce any substantial and competent evidence that the place known as Interstate 10 at the point where the subject sign was located was open to public vehicular traffic.

   
   

8. The definitions of "sign," "interstate highway," and "federal aid primary highway" all include the term "highway," which is defined by Section 479.01(4), Florida Statutes, as follows:

   
   

   (4) "Highway" means every way or place of whatever nature open to the use of the public for purposes of vehicular traffic in this state.

   
   

9. By failing to present evidence regarding public travel along the road in question, the Department of Transportation has failed to prove that this section of roadway was a highway, as that term is used in Chapter 479. By failing to show it was a highway, it has failed to present an essential element of proof of violation of both the statutes and the rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department take no action against the subject sign.

DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 Tallahassee, Florida 32301

James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

FLORIDA DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 78-2368T

HENDERSON SIGNS,

Respondent.

/

FINAL ORDER

In summarizing the testimony of the Department's outdoor advertising inspector, the Hearing Officer made the following Finding of Fact:

He stated sign bore that on Inspection this a permit of the type described in Section 479.07, Florida Statutes.

The only testimony in the original transcript upon which that finding could have been based was that of the outdoor advertising inspector, where in response to the question "Did you observe whether or not there was a permit on the sign structure?" the witness is quoted as saying, "Yes sir, there was one." However, subsequently, the court reporter acknowledged that a transcription error had occurred and that the response should read: "Yes sir, there was none. (T: 7)

Accordingly, the Hearing Officer's finding that the structure bore a permit is rejected and it is hereby, upon review of the entire record In these

proceedings, found that on inspect ion the structure did not bear a permit of the type described in Section 479.07, Florida Statutes.

The Recommended Order further advises that:

In the instant case, only hearsay evidence was introduced

concerning the designation of the place known as Interstate 10 as a portion of the Interstate Highway System and its approval by the appropriate federal authorities. The Department also failed to produce any substantial and com- petent evidence that the place known as Interstate 10 at the point where the subject sign was located was open to public vehic- ular traffic.

By failing to present evidence regarding public travel along the road in question, the Department of Transportation has failed to prove that this section of roadway was a highway, as that term is used in Chapter 479. By failing to show it was a highway, it has failed to present an essential element of proof of violation of both the statutes and the rules,

The Hearing Officer therefore recommended that the Department take no action against the subject sign.

The issues presented in the foregoing cause have been raised in other cases now pending before the First District Court of Appeal. (Department of Transportation v. Bill Reddick d/b/a Arrowhead Campsites Case No. 78-2386T; Florida Department of Transportation v. Henderson Signs, Case No. 78-2302T; Florida Department or Transportation v. Arrowhead Campsites, Case No. 78-1061T; Florida Department of Transportation v. Henderson Sign Service, Case No. 78- 1060T). Additionally, I note that neither party filed Exceptions to the Recommended Order or any other motion after receipt of the Recommended Order.

Also, I am advised that the alleged violation is deemed continuing in nature, and the Department could issue another notice of violation for the structure. From the foregoing it seems to me best to simply adopt the Hearing Officer's recommendations.

Accordingly, having fully and completely reviewed the record and evidence in this case along with the Recommended Order,

IT IS ORDERED that the Recommended Order of the Hearing Officer, except as modified herein, is adopted and becomes the Order of this Agency on this 27th day of November, 1979.

WILLIAM N. ROSE SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

Copies furnished to:

STEPHEN F. DEAN ESQUIRE

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32301

DAVE LEIGHOW, ADMINISTRATOR

Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

JAMES P. APPLEMAN, ESQUIRE

Post Office Box 385 Marianna, Florida 32446

CHARLES G. GARDNER, ESQUIRE

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 78-002368

Orders for Case No: 78-002368