STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 78-2373T

)

HENDERSON SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Chipley, Florida, on February 13, 1979, by Stephen F. Dean, assigned Hearing Officer, of the Division of Administrative Hearings. This case was presented upon a notice of alleged violation of Rules 14-10.04 and 14-10.05, Florida Administrative Code, and alleged violation of Sections 479.07 and 479.11(1), Florida Statutes.

The Department presented evidence that the sign in question was located six miles west of State Road 71 on the south side of Interstate Highway 10,(I-10), that a permit as required by law was not affixed to the sign, and that the sign was located within 660 feet of the nearest edge of the right-of-way of I-10.

The Department did not present substantial and competent evidence that the sign was owned, constructed, maintained or operated by the Respondent, Henderson Signs.

The issue presented was whether Henderson Signs owned, constructed, maintained or operated the sign in question.

APPEARANCES

For Petitioner: Frank H. King, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

For Respondent: James P. Appleman, Esquire

206 Market Street Post Office Box 285

Marianna, Florida 32446 FINDINGS OF FACT

1. The sign which is the subject of the Notice of Violation is located outside any city or town, six miles west of State Road 71 on the south side of Interstate Highway 10. This sign does not have attached to it the permit required by law. The portion of the sign closest to the highway is located 140 feet from the nearest edge of the traveled way of 1-10. There is a message on

   the sign which is visible from the traveled way of 1-10. The subject sign was at this location in the condition described above as late as February 9, 1979.

   
   

2. Notice of Violation was duly given to Henderson Signs.

   
   

3. No substantial and competent evidence was presented regarding who had constructed, operated or maintained the sign in question. The advertisement on the sign was for KOA (Kampgrounds of America).

   
   

   CONCLUSIONS OF LAW

   
   

4. The Department has charged that the subject sign violates Section 479.07, Florida Statutes, which requires that any person who shall construct, erect, operate, use, or maintain an outdoor advertising structure, sign, or advertisement outside a city or town obtain first a permit from the Department and affix said permit to said sign. The evidence presented shows that sign does not have affixed to it such a permit.

   
   

5. The Department also charges that the subject sign violates Section 479.11(1), Florida Statutes, because it is located within 660 feet of the right- of-way of an interstate highway (I-10). The testimony revealed that the sign is located 140 from the traveled way of Interstate 10. This would place the sign within 660 feet of the nearest edge of the right-of-way of Interstate 10.

   
   

6. The Department gave due notice of the violations to Henderson Signs, the Respondent, but did not present substantial and competent evidence that Henderson Signs owned, erected, constructed, operated, or maintained the sign in question. The Department has failed to establish that Henderson Signs is the owner of the subject sign, which is essential for the Department to prevail over the Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department take no action, against Henderson Signs on these charges.

DONE and ORDERED this 16th day of February, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, The Carlton Building Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1979.

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

James P. Appleman, Esquire

206 Market Street Post Office Box 285

Marianna, Florida 32446

Docket for Case No: 78-002373

Orders for Case No: 78-002373