STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2295T

)

E. T. LEGG & COMPANY, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2296T

)

E. T. LEGG & COMPANY, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2297T

)

1. T. LEGG & COMPANY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on November 12, 1986, in Miami, Florida. The following appearances were entered:

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Esquire

   Department of Transportation

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

   
   

   For Respondent: Charles C. Papy, III, Esquire

   201 Alhambra Circle

   Coral Gables, Florida 33134 PROCEDURAL BACKGROUND

   On May 29, 1986, the Petitioner placed four separate notices of violation on the sign faces of two of the Respondent's signs, one located on U.S. 1, 1.35 miles north of Industrial Road, Big Pine Key [DOAH Case Numbers 86-2294T and 86- 2295T] and one located on U.S. 1, 1.25 miles north of Industrial Road, Big Pine Key [DOAH Case Numbers 86-2296T and 86-2297T]. The notices of violation all charged that the signs had no state sign permits and were erected or maintained without the required permits. The Respondent requested a formal administrative hearings.

   
   

   At the final hearing, the Petitioner made a motion to consolidate the four separate cases because the issues in each case were substantially similar. The Respondent did not object to the motion to consolidate and the motion was granted.

   
   

   At the final hearing, the Petitioner presented the testimony of one witness. In addition, Petitioner's Exhibits 1 through 7 were duly offered and admitted into evidence. The Respondent presented no witnesses and submitted no documentary evidence. Neither party submitted post-hearing proposed findings of fact.

   
   

   FINDINGS OF FACT

   
   

   Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the stipulations of fact entered into by the parties and the entire record compiled herein, I hereby make the following findings of fact:

   
   

   1. The two signs and four sign faces (hereinafter, the signs) which are the subject of these proceedings are owned by the Respondent and are outdoor advertising signs as defined in Chapter 479, Florida Statutes.

      
      

   2. One sign is located on U.S. 1, 1.35 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2294T and 86- 2295T) and the other sign is located on U.S. 1, 1.25 miles north of Industrial Road, Big Pine Key (DOAH Case Numbers 86-2296T and 86-2297T)

      
      

   3. The Respondent purchased the signs from the Daley Outdoor Advertising Company in 1984.

      
      

   4. The signs are adjacent to and visible from U.S. 1 in Monroe County.

      U.S. 1 or State Road 5, is a federal-aid primary highway. U.S. 1 was open for public use at the time the notices of violation were placed on the signs.

   5. All of the signs are located within 660 feet of the nearest edge of the right-of-way of U.S. 1, State Road 5. The area in which the signs are located is zoned "GU".

      
      

   6. Mr. William Kenney is employed as the outdoor advertising administrator for the Department of Transportation, District VI. On May 29, 1986, Mr. Kenney inspected the signs and noticed that neither of the signs had a state outdoor advertising permit tag attached. At that time, Kenney placed a notice of violation on each sign face.

      
      

   7. After placing the notice of violation stickers on the signs, Kenney examined the Department of Transportation's office records pertaining to outdoor advertising signs and found no evidence of permit tags having ever been issued for the signs.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

      
      

   9. The Department of Transportation is the state agency charged with the responsibility of regulating outdoor advertising signs and issuing permits therefore, pursuant to the provisions of Chapter 479, Florida Statutes.

      
      

   10. An outdoor advertising sign may not be erected, operated, used or maintained on any portion of the federal-aid primary highway system without first obtaining a permit for the sign from the Department of Transportation. Section 479.07, Florida Statutes.

       
       

   11. Certain signs are exempt from the requirement that a permit be obtained pursuant to Section 479.07. The exempted signs are generally covered in Section 479.16, Florida Statutes, and Rule 14-10, Florida Administrative Code.

       
       

   12. The Petitioner has established that the signs owned by Respondent are outdoor advertising signs maintained on a portion of the federal-aid primary highway system without a permit issued by the Department of Transportation. The Respondent has not shown, and the evidence does not indicate, that the signs involved in these cases are signs which are exempt from the permitting requirements of Section 479.07, Florida Statutes.

RECOMMENDATION

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

That a Final Order be issued declaring that the signs involved in these cases are illegal and must be immediately removed.

DONE AND ORDERED this 14th day of January, 1987, in Tallahassee, Florida.

W. MATTHEW STEVENSON 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 14th day of January, 1987.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064

Charles C. Papy, III, Esquire

201 Alhambra Circle

Coral Gables, Florida 33134

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

A. J. Spalla, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 86-002294

Orders for Case No: 86-002294