STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-310T

)

ERIC W. and SUSAN BALL, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 11, 1979, in Marathon, Florida.

APPEARANCES

Philip S. Bennett, Esquire, Department of Transportation, Haydon Burns Building, Tallahassee, Florida 32301, appearing for the Petitioner. Eric W. Ball, c/o Faro Blanco Marine Resort, 1996 Overseas Highway, Marathon, Florida 33050, appearing Pro Se.

ISSUE

The issue posed herein is whether or not the Respondents, Eric W. and Susan Ball, violated Subsection 479.11(1), Florida Statutes, by permitting two signs to be situated in a State owned right-of-way.

FINDINGS OF FACT

1. Based on the testimony adduced at the hearing, the following relevant facts are found.

   
   

2. Eric W. and Susan Ball are owners of Fare Blanco Marine Resort, which is located on Key Colony Beach, Marathon, Florida. The Balls have owned the Resort since approximately 1968.

   
   

3. The Respondents were cited by the Petitioner, department of Transportation, for violating Subsection 479.11(1), Florida Statutes based on the fact that they owned two signs which are situated in front of their resort, which is located on Highway U.S. 1 in Marathon, Florida. Highway U.S. 1 is a Federal-aid highway. There is no dispute but that the two signs which are the subject of this proceeding encroaches the right-of-way respectively by two and seven and one-half feet. The exact locations of the signs are at 1966 Overseas Highway at Milepost 5.43; 5.48. The copies on the signs are, "Faro Blanco Marine Resort" and "Faro Blanco Docks and Grill".

4. Eric Ball testified that the subject signs have been situated on the property since 1947 or more than thirty-two years. Messr. Ball testified that in the area where the subject signs are situated, the highway is four-lane, while most of the area roads are two-lane in Marathon, Florida. He further testified that the signs situated in front of his resort is a landmark for the Marathon area and that many commercial businesses advertise the signs as a focal point for customers to find their businesses. Messr. Ball testified that he is paying the State a lease fee based on certain bottom lands in and around his docking facilities and that he would be willing to enter into an agreement with the State to pay a fee for leasing the area in which the subject signs are situated. He further testified that in the area where the subject signs are situated, there are bicycle passes and no traffic problems, inasmuch as the area is not congested and that the likelihood of the State expanding the road beyond the four-lanes as presently exists, is remote.

   
   

5. As to the larger sign with the copy, "Faro Blanco Docks and Grill", Messr. Ball testified that that sign would have to be moved approximately seven and one-half feet to be free of the right-of-way which, if moved, would cost a large sum of money, inasmuch as the sign is situated on three telephone poles which are encased in concrete. He testified that cranes and heavy equipment would be needed to move the signs. The area in question is zoned commercial/industrial.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57 Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The authority of the Petitioner is derived from Chapter 479, Florida Statutes.

   
   

9. Competent and substantial evidence was offered to establish that the subject signs herein are on-site signs not permitted in a right-of-way within the meaning of Subsection 479.11(1), Florida Statutes.

   
   

10. Subsection 479.11(1), Florida Statutes, provides a means whereby certain advertising signs are permitted in commercial/industrial zoned areas subject to an agreement established by Section 479.02, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent take the initiative to enter into an agreement with the Petitioner pursuant to Section 479.02, Florida Statutes, within twenty (20) days of the rendition of the Department's final order herein. This recommendation is based on the fact that the signs in question have been situated on the subject property for more than thirty-two (32) years; the fact that the area in question is served by a four-lane road and the Respondent's stated willingness to enter into an agreement with the State of Florida pursuant to Section 479.02, Florida Statutes.

RECOMMENDED this 10th day of July, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1979.

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida

Eric W. & Susan A. Ball

c/o Faro Blanco Marine Resort 1966 Overseas Highway

Marathon, Florida 33050

Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 79-000310

Orders for Case No: 79-000310