STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1445T

) CAPE INVESTMENT REALTY, INC., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on January 18, 1983, in Fort Lauderdale, Florida. The following appearance was entered:

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301 For Respondent: None

On April 23, 1982, the Petitioner Department of Transportation, issued a notice of alleged violation of Outdoor Advertising, Chapter 479, Florida Statutes, to Respondent Cape Investment Realty, Inc. In the notice, Petitioner alleged that Respondent owned a sign located on State Road 27, at Section 042S, MPS 00.36, which had been erected without first obtaining a state permit and in an unpermittable zoning area.

Thereafter, by letter dated May 4, 1982, Flora Elena Caso of Cape Investment Realty, Inc., requested an administrative hearing pursuant to the provisions of Section 120.57, Florida Statutes, concerning the allegations contained in the notice. By letter dated May 21, 1982, Petitioner requested the Division of Administrative Hearings to schedule and conduct a hearing in this cause.

At the final hearing, George King testified for the Petitioner and Petitioner's Exhibits 1-4 were offered and received into evidence.

A proposed Recommended Order has been submitted by the Petitioner. To the extent that the proposed findings submitted by petitioner are not reflected in this Order, they are rejected as being not supported by competent and substantial evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. On February 9, 1982, George King, Sign Inspector for the Department of Transportation, observed and checked a sign located approximately three-tenths of a mile east of the Hendry County line on state Road U.S. 27, in Palm Beach County, Florida. State Road U.S. 27 is a federal-aid primary highway which is open and utilized by the traveling public. The sign in question, which is visible from U.S. 27, advertises "Cape Realty" and is located approximately two feet off of the right-of-way line, outside the city limits in an area zoned agricultural.

   
   

2. At the time the sign was inspected on February 9, 1982, there was no state permit attached to the sign. An examination of the photograph of the subject sign taken by the inspector on December 14, 1982, at the same location, shows no state permit affixed to the structure.

   
   

3. Additionally, by timely failing to answer admissions requested by Petitioner, the Respondent is deemed to have admitted ownership and that the subject sign was erected without a state permit in an unpermittable zoning area, outside any incorporated city of town, adjacent to and visible from the main traveled way of U.S. 27.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

5. The sign in question is alleged to violate Sections 479.07(1) and 479.11(1), Florida Statutes and Rule 14-10.05(6), Florida Administrative Code, which provide in pertinent part as follows:

   
   

   479.07 Individual device permits; fees; tags.--

   (1) Except as in this chapter otherwise provided, no person shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained any outdoor advertising struc- ture, outdoor advertising sign or outdoor advertisement, outside any incorporated city or town, without first obtaining a permit therefor from the department, and paying the annual fee therefor, as herein provided...

   
   

   479.11 Certain outdoor advertising prohib- ited.--No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

   1. Within 660 feet of the nearest edge of the right-of-way of all portions of the

      interstate system or the federal-aid primary system except as provided in s. 479.111,...

      479.111 Certain advertising signs per- mitted.--Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:

      * * *

   2. Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

   
   

6. Additionally, Chapter 14-10.05(6), Florida Administrative Code, prohibits the erection of a sign next to a federal-aid primary highway that does not meet zoning requirements.

   
   

7. Any advertising sign which is constructed, erected, operated, used, maintained, posted or displayed in violation of Chapter 479 is a public and private nuisance which is required by law to be abated by the Department. Section 479.17, Florida Statutes.

   
   

8. The advertising sign or structure in question which is owned by the Respondent and located in Palm Beach County, Florida, on U.S. 27, outside any incorporated city or town, violated Sections 479.07(1) and 479.11(1), Florida Statutes and Rule 14-10.05(6), Florida Administrative code, and is subject to removal.

RECOMMENDATION

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

That a Final Order be entered by the Department of Transportation finding that the sign in question is in violation of applicable rules and statutes and should be removed.

DONE and ORDERED this 8th day of March, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Department of Administration Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8 day of March, 1983.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Mrs. Flora Elena Caso

c/o Cape Investment Realty, Inc.

417 West Sugarland Highway Clewiston, Florida 33440

John Beck, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 82-001445

Orders for Case No: 82-001445