STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1332T

) HENDERSON SIGNS (1.56 MILES EAST ) OF SR 71), )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this case was held pursuant to notice on September 30, 1980, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon a Notice of Violation served upon tie Respondent and others. The Respondent requested a formal hearing pursuant to Chapter 120, Florida Statutes, and the matter was forwarded to the Division of Administrative Hearings.

This case concerns allegations contained in the Notice of Violation that an outdoor advertising structure located 1.56 miles east of State Road 71 on Interstate Highway 10 In Jackson County, Florida, is in violation of Sections 479.07(1), (6) and (7) and 479.11(1), Florida Statutes, and Rule 14-10.05(1)(a), Florida Administrative Cede.

APPEARANCES

For Petitioner: Charles G. Gardner, 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 FINDING OF FACT

1. The sign in question is located in Jackson County, Florida, 1.56 miles east of State Road 71 on a road known as 1-10.

   
   

2. At the time it was cited for violation, the sign lacked any identification of its owner. The advertising message was for Best Western- Tivoli Inn. The Department of Transportation's inspector made inquiry at Tivoli Inn and obtained information which led the inspector to believe that Henderson Signs had an ownership interest in the sign. The inspector searched the property and tax records of Jackson County and determined that the sign was located on Malloy Glad Farms.

3. Notice of Violation was sent to Best Western-Tivoli Inn, Henderson Signs and Malloy Glad Farms. Henderson Signs requested a formal hearing regarding the sign, received notice of the hearing, and appeared through counsel.

   
   

4. The Department of Transportation presented right-of-way maps, other documents, and the testimony of the District Right-of-Way Engineer showing that the Department designated a road construction project as part of the interstate system, that right-of-way maps ore prepared by the Department for this project, that the Federal Highway Administration approved the acquisition of the right- of-way for construction of this project, that the project was designated State Road 8/Interstate 10, and that the road commonly known as 1-10 in Jackson County was build on the right-of-way approved for acquisition by the Federal Highway Administration. The sign in question is located within 600 feet of the right- of-way of Interstate 10, and is visible from the traveled lanes of this roadway. The portion of Interstate 10 adjacent to the sign's location was open to public travel prior to the sign's construction in 1979.

   
   

5. The sign in question is located in an unzoned area of Jackson County, and the area in which it is located is not unzoned commercial or industrial property.

   
   

6. The sign has no permit, and the records of the Department reveal that no application for a permit has ever been submitted by its owner. At the time it was cited for violation, the sign did no bear the name of the owner.

   
   

7. The Department has made a good faith attempt to locate and notify these with a possible ownership interest in the sign, to include the business advertising on the sign, the owner of the land upon which the sign is located, and Henderson Signs, believed to own the sign.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Department of Transportation alleges the sign in question violates Sections 479.07(1), (6) and (7) and 479.11(1), Florida Statutes, and Rule 14- 10.05(1)(a), Florida Administrative Code. Section 479.07(1), Florida Statutes, prohibits erection of any sign without first obtaining a permit, and requires that the permit tag be attached to the sign. Section 479.07(6), Florida Statutes, prohibits a person from erecting a sign without first obtaining the written permission of the owner or lessee of the property where tie sign is to be located, and requires the application for and receipt of a current permit tag. Section 479.07(7), Florida Statutes, requires that any person who erects, uses or maintains a sign to affix their name to the front of the sign so that it is visible from the front surface of the structure.

   
   

9. The evidence shows that the road known as 1-10 in Jackson County, Florida, was designated prior to construction as an interstate project and assigned the designation of Interstate 10. Acquisition of the right-of-way for this project was approved by the Federal Highway Administrative, and the road known as 1-10 was constructed within this approved right-of-way. Section 479.01(13) , Florida Statutes, defines interstate highway as any highway designated as part of the national system of interstate and defense highways by the Department of Transportation and approved by the appropriate authority of the federal government. The evidence adequately established that the read known as 1-10 was designated part of the national interstate system by the Department and approved by the appropriate authority of the federal government.

10. The evidence presented also shows that the subject sign is an outdoor advertising structure bearing an advertising message visible from the main traveled way of an interstate highway. The structure is a sign within the definition of Section 479.01(1), Florida Statutes, and the Department has jurisdiction to regulate the sign in question under Chapter 479, Florida Statutes. The evidence also shows that the sign lacks a permit, that no application was made for a permit for the sign, and that at the time the sign was cited it did not bear the name of the person who erected, used or maintained the sign. No evidence was presented regarding whether the landowner had given written permission for the sign to be erected on his property; however, the evilence does show a clear violation of Section 479.07(1), (6) and (7), Florida Statutes.

    
    

11. The Department further alleges that the sign violates Section 479.11(1), Florida Statutes, which prohibits erection of any sign within (-00 feet of the nearest edge of the right-of-way of an interstate highway. The sign is located within 600 feet of the right-of-way of 1-10, and is visible from the traveled way or the lanes of 1-10. The sign is not located within an area zoned commercial or industrial, or in an unzoned commercial or industrial area. No evidence was presented that the sign met any exception provided in Section 479.111, Florida Statutes. The evidence shows a violation of Section 479.11(1), Florida Statutes, and Rule 14-10.05(1)(a) , Florida Administrative Code, which essentially restates the provisions of Section 479.11, Florida Statutes.

    
    

12. Section 479.17, Florida Statutes, would authorize the Department of Transportation to proceed to remove any sign erected in violation of chapter

479. The Department has demonstrated the sign was erected in violation of Chapter 479. Pursuant to Section 479.17, the Department is only required to give notice to the owner when tie owner's name appears on the sign. The sign in question did not bear the owner's name when cited, contrary to Section 479.07(7)

, Florida Statutes, and the Department had no obligation to notify the owner. The Department exercised reasonable diligence in attempting to locate and notice persons who might have any interest in this sign. Based upon the evidence presented, the persons noticed of the violation and those in privity with them would be bound by the orders arising out of this proceeding.

13. The issue of compensation of owners for the removal of signs is a complex issue which is now before the Supreme Court of Florida. However, it does not appear that any appellate decision has approved compensation to a sign owner for the removal of a sign which was erected after 1971 in total disregard of the law. The facts in the instant case show the sign was illegally erected, and the Department has exercised restraint in enforcing the provisions of Chapter 479. It would appear that the removal of the subject sign should be without compensation to the owner.

RECOMMENDATION

Based on the foregoing Findings of Pact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the entire structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner.

DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 31st day of October, 1980.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

James P. Appleman, Esquire

206 Market Street Post Office Box 385

Marianna, Florida 32446

Docket for Case No: 80-001332

Orders for Case No: 80-001332