STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0280T

) PIER HOUSE INN AND BEACH CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearing, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on June 29, 1984, in Key West, Florida. Subsequent to the hearing, the parties submitted proposed findings of fact and conclusions of law. These have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For Respondent: H. Ray Allen, Esquire

618 Whitehead Street

Key West, Florida 33040

By Notice of Violation (Form 178-503), issued on December 12, 1983, the Department of Transportation seeks to remove a sign alleged to be owned by Pier House Inn and Beach Club, located on U.S. 1, on Rockland Key in Monroe County, Florida, for failure to have a state sign permit and for violation of the spacing rule on a federal-aid primary highway. The Pier House Inn and Beach Club timely filed its Petition for Formal Proceedings under Section 120.57, Florida Statutes, wherein it identified itself as the lessee of the subject sign, and requested a formal hearing.

The issue for determination is whether the subject sign is in violation of the statutes and rule as alleged in the violation notice, and if so, whether this sign should be removed under the circumstances.

At the hearing, the Petitioner and the Respondent each presented one witness, William C. Kenney, the Department's Outdoor Advertising Administrator for Dade and Monroe Counties, and Peter G. Henry, General Manager of the Pier House Inn and Beach Club. Six exhibits were received in evidence, and official notice was taken of Chapter 14-10 of the Florida Administrative Code.

FINDINGS OF FACT

1. The outdoor advertising sign which is the subject of this proceeding has been erected on a small parcel of land located approximately one-quarter of a mile west of First Street on Rockland Key, next to the southbound lane of U.S. 1, in Monroe County, Florida. This location is outside the city limits of any municipality.

   
   

2. On approximately October 1, 1983, Mr. Frank Toppino, who is not a party to this proceeding and who was not presented as a witness at the hearing, leased the subject property to the Pier House Inn and Beach Club for one year. Under the terms of this lease, the Pier House Inn received the right to use the property for an outdoor advertising structure which the parties to the lease contemplated would be constructed there. The Pier House agreed to pay the sum of $950 to Mr. Toppino as rent for the year. In addition, the Pier House agreed to undertake construction of the sign on the land for the benefit of Mr. Toppino, the lessor, after the lease expires. The PIER House received the right to use this land for one year, and the right to place advertising copy of its choice on the face of the outdoor advertising structure for one year.

   
   

3. The lease between Mr. Toppino and the Pier House Inn covering the subject property was received in evidence. This lease, and the testimony of the general manager of the Pier House Inn who executed it as lessee, which is detailed above, supports a finding of fact that Mr. Frank Toppino and not the Pier House was the owner of the outdoor advertising structure which is the subject of this proceeding on October 1, 1983.

   
   

4. Subsequently, when the Department's Outdoor Advertising Administrator made his inspection of the subject sign, there was no state outdoor advertising permit affixed thereto, and the Department has not issued any permit for this structure. The sign was erected between two other permitted signs, and it is closer than 500 feet to both of these existing and permitted structures. The sign which is the subject of this proceeding is located adjacent to a federal- aid primary highway outside any incorporated city or town. It is visible from

   U.S. 1, and it is within 660 feet of the edge of the pavement of this highway.

   
   

5. The Department's Outdoor Advertising Administrator made a determination that the Pier House Inn was the owner of the sign in question based upon information contained in a Monroe County Building Permit application, and based upon the hearsay information received during telephone conversations. However, this information is controverted by the direct testimony of the general manager of the Pier House Inn which is itself corroborated by the lease between Mr. Toppino and the Pier House which is in evidence. Thus, the testimony received from the Department's witness is not of sufficient quality to support a finding of fact that the Pier House Inn is the owner of the sign in question. Moreover, the Department has the burden of proof on this issue, and the quantity and quality of the evidence presented on the matter of ownership of the subject sign does not carry this burden.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

7. Section 479.07(1), Florida Statutes, requires all outdoor advertising structures outside incorporated cities or towns to have a permit issued by the Department. The sign which is the subject of this proceeding does not have such a permit, and thus it is in violation of the above statute.

   
   

8. Section 14-10.06(1)(b)3, Florida Administrative Code, is what is known as the spacing rule, and it requires signs in commercial and industrial zoned and unzoned areas within 660 feet of a federal-aid primary highway to be spaced at least 500 feet away from other signs on the same side of the highway facing in the same direction. The subject sign is located adjacent to a federal-aid primary highway outside the city limits, it is within 660 feet from the edge of the pavement of a federal-aid primary highway, it is visible from U.S. 1, and it is closer than 500 feet to both of the existing and permitted signs along U.S.

1. Thus, the subject sign is in violation of this section of the Code.

   
   

   1. Nevertheless, the sign in question cannot be removed in this administrative proceeding because the Department has not followed its own procedural rules when a sign is found to be in violation of Chapter 479, Florida Statutes. This procedure is found in Section 14-10.05(2), Florida Administrative Code, where subsection (g) requires the administrator of Outdoor Advertising to send the violation notice to the sign owner by certified mail, return receipt requested. Subsection (h) of this Code provision authorizes removal of the sign if the sign owner fails to reply to the violation notice within 30 days. Subsection (i) provides that if a hearing is requested, a notice of hearing will be furnished to the sign owner. Thus, the Department's rules contemplate that the sign owner is indispensable to the prosecution of administrative proceedings for the removal of a sign that violates the statutes. The Pier House Inn and Beach Club not having been found on the facts presented to be the owner of the sign in question in this case, this sign may not be removed.

      
      

   2. Further, the Department's violation notice was issued on Form 178-503 which by Section 14-10.05(2)(a), Florida Administrative Code, is reserved for a licensed outdoor advertising sign company. When the Outdoor Advertising Administrator ascertained that the subject sign was not permitted to a licensed outdoor advertising sign company, this rule requires that Form 178-504 be sent to the owner of the sign. Thus, in this procedural aspect also, the Department has failed to utilize its own rule provisions, and it may not in this proceeding require the subject sign to be removed.

      
      

   3. The Department contends (1) that the Pier House Inn is the owner of the sign in question because it built the sign and was described as owner on the building permit, and (2) that Section 479.17, Florida Statutes, declares an illegal sign to be a nuisance and authorizes its removal as a nuisance without notice to the owner unless the sign bears the owner's name. However, the testimony of the general manager of the Pier House, corroborated by the lease between Mr. Toppino and the Pier House, is in direct conflict with the testimony of the Department's witness which is supported by the declaration on the building permit, and there is not sufficient evidence to support the Department's contention that the subject sign is owned by the Pier House. Further, although Section 479.17, Florida Statutes, authorizes the Department to remove an illegal sign as a nuisance, the Department has not elected to pursue this remedy. Instead, it has initiated administrative proceedings to effect removal of the sign in question, and the Department's rules of administrative procedure as discussed above contemplate, and require, notice to the sign owner before removal can be accomplished.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the violation notice issued on December 12, 1983, to the

Pier House Inn and Beach Club, be dismissed, without prejudice to the reinstitution of proceedings in which the violation notice is directed to the actual owner of the sign in question.

THIS RECOMMENDED ORDER entered this 23rd day of August, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 23rd day of August, 1984.

COPIES FURNISHED:

Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

H. Ray Allen, Esquire 618 Whitehead Street

Key West, Florida 33040

Docket for Case No: 84-000280

Orders for Case No: 84-000280