STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0982T

)

JOE BRYANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander on June 11, 1985 in Bartow, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station

58

Tallahassee, Florida 32301

For Respondent: Joe Bryant, pro se

Post Office Box 805

Dade City, Florida 33525 BACKGROUND

This case arose when petitioner, Department of Transportation (DOT), issued an Alleged Violation of the Florida statutes and Florida Administrative Code and Notice to Show Cause on January 2, 1985 wherein it charged that respondent, Joe Bryant, was the owner of a sign near Dade City, Florida, which violated state permit and spacing requirements. The notice advised Bryant that DOT intended to remove the sign.

On March 4, 1985, Bryant requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed agency action. The matter was forwarded by petitioner to the Division of Administrative Hearings on April 1, 1985 with a request that a hearing officer be assigned to conduct a formal hearing.

By notice of hearing dated April 12, 1985, the final hearing was scheduled for June 11, 1985 in Bartow, Florida. At final hearing petitioner presented the testimony of respondent and Linda Kay Brown and offered petitioner's exhibits I-4. All were received in evidence.

The transcript of hearing was filed on July 3, 1985.

Neither party filed proposed findings of fact and conclusions of law,

At issue is whether respondent's sign is in violation of state permit and spacing requirements and should accordingly be removed.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Joe Bryant, is the owner of a 12' x 36' outdoor advertising sign located on the east side of State Road 52 approximately 31.27 miles east of U.S. Highway 19 in Pasco County, Florida. The sign lies within the corporate limits of the City of Dade City, Florida.

   
   

2. The sign was observed on an undisclosed date by an outdoor advertising inspector of petitioner, Department of Transportation (DOT), during a routine inspection. After further investigation, it was determined respondent had no permit for the sign as required by state law.

   
   

3. State Road 52 is a federal-aid primary highway. Accordingly, respondent's sign can be no closer than 1,000 feet from the next closest permitted sign on the same side of the road. The inspector found a second permitted sign only one hundred fifty-eight feet away on the same side of the highway. Therefore, respondent's sign was in violation of the spacing requirement.

4. Respondent initially denied that he owned the sign in question. He later contended that the sign is exempt from state permit and spacing requirements since it lies within the City of Dade City, Florida. However, no valid authority for this proposition was submitted.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

6. Respondent's request to change venue from Bartow to Dade City is denied. His contention that administrative hearings must be conducted in the county where the respondent resides or where the sign is located is incorrect. Although this principle may be applicable in civil actions, the same is not true in administrative proceedings conducted under Chapter 120, Florida Statutes. See Rule 22I-6.14, Florida Administrative Code 1/

   
   

7. Subsection 479.07(1), Florida Statutes (Supp 1984), provides in pertinent part:

   
   

   1. Except as provided in s. 479.16, a person may not erect, operate, use, or maintain. . . any sign on the State Highway System outside an unincorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. (Emphasis added)

      
      

      The evidence discloses that respondent's sign lies adjacent to a federal aid primary highway (State Road 52), and that he has failed to obtain the required permit. Therefore, his sign is in violation of the above statute. Although Bryant contends that advertising within an incorporated city is exempt from DOT regulation, this contention is unavailing for the Statute clearly provides otherwise.

      See also Fla. Dept. of Transportation v. E.T. Legg and Co., So.2d (Fla. 4th DCA 1985 op. filed July 24, 1985)(holding that DOT controls advertising along (a) all the interstate and federal aid primary highway systems, and

      (b) state road systems outside of cities and towns).

8. Bryant is also charged with violating the spacing requirement set forth in Subsection 479.07(9)(a)2., Florida Statutes (Supp. 1984), which provide as follows:

   
   

   (9)(a) A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least:

   * * *

   2. One thousand feet from any other permitted sign 90 the same side of the highway, if on a federal-aid primary highway.

   
   

   The evidence reflects that Bryant's sign violates the foregoing statute, since it lies within one hundred fifty- eight feet from a permitted sign on the same side of the highway.

   
   

9. Because Bryant's sign violates both the permit and spacing laws, it is concluded the sign should be removed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent's outdoor advertising sign be found in violation of Subsections 479.07(1) and (9)(a)2., Florida Statutes, and that the sign be removed.

DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida.

Hearings

Hearings

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 7th day of August, 1985.

ENDNOTE

1/ That rule provides that "(w)henever possible, hearings shall be held in the area of residence of the petitioner or other non governmental parties affected by agency action, or at the place most convenient to all parties as determined by the Hearing Officer." (Emphasis added)

COPIES FURNISHED:

Charles G. Gardner, Esquire

Haydon Burns Bldg., Mail Station 58 Tallahassee, Florida 32301

Mr. Joe Bryant

P. O. Box 805

Dade City, Florida 33525

Docket for Case No: 85-000982

Orders for Case No: 85-000982