STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-4338T

)

1. L. CARPENTER, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on February 21, 1986, in Marathon, Florida. The transcript was filed on March 6, 1986, and the parties were allowed 10 days thereafter to submit proposed findings of fact and conclusions of law. To date, nothing has been received from either party, and no request for an extension has been made.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Esquire

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

   
   

   For Respondent: Mr. J. L. Carpenter, in pro per.

   Post Office Box 2641

   Marathon Shores, Florida 33052

   
   

   By notice dated November 19, 1985, the Department advised the Respondent that his sign on the northbound side of U.S. 1, 170 feet north of 69th Street in Marathon, Florida, was in violation of Sections 479.07(1) and 479.07(9)(a)2., Florida Statutes, because this sign did not have a state sign permit, and because it violates the spacing rule for signs on a federal-aid primary highway. The Respondent requested an administrative hearing, thereby apparently denying the allegations in the Department's violation notice. The issues are, therefore, whether the

   Respondent's sign should be removed as an unpermitted sign which is in violation of the spacing rule.

   
   

   FINDINGS OF FACT

   
   

   1. The outdoor advertising sign which is the subject of this proceeding is situated 30-35 feet from the pavement on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in the City of Marathon, Florida. The sign is visible to traffic on U.S. 1.

      
      

   2. U.S. 1 is a federal-aid primary highway, and it has been such since the subject sign was erected.

      
      

   3. This outdoor advertising sign is owned by the Respondent,

      T. L. Carpenter, who is also the owner of the property upon which the sign sits.

      
      

   4. The subject sign has not been issued an outdoor advertising sign permit by the Department, nor has any application for a permit been filed with the Department.

      
      

   5. This sign is less than 1,000 feet from an outdoor advertising sign which was erected on the same side of U.S. 1 by Jerry's Outdoor Advertising in 1983 or 1984. Permits numbered AK711-10 and AK710-10 have been issued by the Department to Jerry's Outdoor Advertising for its sign.

      
      

   6. The Respondent purchased the property where the subject sign stands in 1977. The sign had been erected by the prior owner, and the Respondent received the subject sign when he took title to the property. Nevertheless, the Respondent has never applied for an outdoor advertising permit for this sign.

      
      

   7. For some period of time after the Respondent bought this property and the subject sign, the Respondent advertised a health food store by copy on the sign. Presently, this sign advertises a restaurant. The copy, however, does not advertise an on-premise business.

      
      

   8. Due to the proximity of the permitted sign of Jerry's Outdoor Advertising, the Respondent may not now receive a permit for his sign at its present location.

      
      

      CONCLUSIONS OF LAW

   9. The Division of Administrative Hearings has jurisdiction over the parties to and 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.

      
      

   10. Section 479.07(1), Florida Statutes, prohibits the construction, erection, use or maintenance of an outdoor advertising structure along any federal-aid primary highway without first obtaining a permit therefor from the Department of Transportation.

       
       

   11. Section 479.07(9)(a)2., Florida Statutes, prohibits the permitting of any sign which has not been issued a permit by July 1, 1985, unless it is at least 1,000 feet from any other permitted sign on the same side of a federal-aid primary highway.

       
       

   12. The Respondent's sign that is the subject of this proceeding was erected without a permit by its prior owner, and it has been used or maintained by the Respondent without a permit since he acquired the sign. Thus, this sign is illegal pursuant to Section 479.07(1), Florida Statutes.

       
       

   13. The Department may not now issue a permit for the Respondent's sign at its present location because it is within 1,000 feet from the permitted sign of Jerry's Outdoor Advertising on the same side of U.S. 1.

       
       

   14. Therefore, the subject sign must be removed because it is unpermitted, and may not receive a permit under the spacing rule.

RECOMMENDATION

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

RECOMMENDED that the sign owned by the Respondent on the northbound side of U.S. 1, approximately 170 feet north of 69th Street in Marathon, Florida, be removed.

THIS RECOMMENDED ORDER ENTERED this 2nd day of April, 1986, in Tallahassee, Leon County, 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 2nd day of April, 1986.

COPIES FURNISHED:

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

Mr. J. L. Carpenter

P. O. Box 2641

Marathon Shores, Florida 33052

Thomas E. Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-004338

Orders for Case No: 85-004338