STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2016T

) FERRIS WALLER, d/b/a COUNTRY ) VILLAGE FLEA MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 26 October 1982 at Bartow, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Charles White, Esquire

Post Office Box 1119

Plant City, Florida 33566

By Notice of Alleged Violation dated May 18, 1982, Petitioner seeks to have the outdoor advertising sign on I-4, 13.66 miles east of U.S. 301 advertising Country Village Flea Market removed. As grounds there for it is alleged that the sign does not have a permit and the location of the site is not zoned to authorize the erection of a sign. By letter dated June 28, 1982, Ferris Waller requested an administrative hearing on this Notice of Alleged Violation and this hearing was scheduled.

At the commencement of the proceedings Petitioner moved to dismiss the proceedings alleging the Country Village Flea Market is a Florida corporation and the proper party, that Respondent Waller is not a proper party, and that Waller should be dismissed as a party. After hearing arguments on this motion, the motion was denied. Thereafter, Petitioner called one witness and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner submitted Request for Admissions to Respondent Waller on 17 August 1982, and no response thereto was received from Waller (Exhibit 1). Pursuant to Rule 1.370(a), Florida Rules of Civil Procedure, these requests are deemed admitted. Included therein are the following:

   1. The sign in question is an outdoor advertising sign visible to vehicular traffic on I-4 and located within 660 feet of the I-4.

   2. The sign has never been issued a permit by Petitioner.

   3. The sign was located outside the corporate limits of a city or town at the time it was erected.

   4. The sign is not located in a commercial or industrial zoned area or in a commercial or industrial unzoned area.

   5. The structure is owned by Respondent Waller.

      
      

2. Exhibit 2, a computer printout from the office of the Secretary of the State of Florida, shows Country Village Flea Market, Inc., to have been incorporated July 15, 1980, with all directors having the surname of Waller, and Ferris Waller as president and registered agent. The address of the corporation is the same as the address to which the Notice of Alleged Violation was sent.

   
   

3. The area in which this sign is located is zoned R-1A, which is single- family residential, and is located inside the city limits of Plant City, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

5. Section 479.02, Florida Statutes, provides in part that it shall be the duty of Petitioner to regulate the size, lighting, and spacing of signs permitted in zoned and unzoned commercial and industrial areas. Section 479.07, Florida Statutes, provides in part that no person shall construct, erect, operate or maintain an outdoor sign outside any incorporated city without first obtaining a permit for such sign from the Department of Transportation. It further provides that any person who shall erect an outdoor advertising sign along any federal-aid primary highway or interstate highway within any incorporated town or city shall apply for a permit from the Department.

   
   

6. Section 479.111, Florida Statutes, provides in part that permits shall be issued for outdoor advertising signs only when located "in commercial and industrial zoned or commercial and industrial unzoned areas."

   
   

7. The sign here involved has never been issued a permit and it is located in an area which is not zoned to authorize the erection of outdoor advertising signs.

   
   

8. Proper notice to the owner of the sign, whether it be Country Village Flea Market, Inc., or Ferris Waller, was obtained by service of the Notice of Alleged Violation on Ferris Waller. Furthermore, Waller appeared at the hearing.

   
   

9. From the foregoing it is concluded that Respondent's sign is in violation of Chapter 479, Florida Statutes, as alleged, in that it does not have a permit and is located in an area zoned such that a permit cannot issue. It is

RECOMMENDED that the Department of Transportation issue an order directing Country Village Flea Market, Inc., to remove this sign within thirty (30) days of the date of that order and, if not so removed, then the Department take appropriate steps to remove this unauthorized sign.

DONE AND ENTERED this 9th day of November, 1982, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer 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 9th day of November, 1982.

COPIES FURNISHED:

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

Charles White, Esquire Post Office Box 1119

Plant City, Florida 33566

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

Docket for Case No: 82-002016

Orders for Case No: 82-002016