STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2465T

)

HI WAY ADVERTISING, )

)

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 December 17, 1986, in Bartow, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Jack Williams, pro se

817 Florida Avenue

New Port Richey, Florida 33552

By Notice of Illegal Sign on Right of Way dated June 18, 1986, the Department of Transportation (DOT) Petitioner, seeks to assess an administrative fine in the amount of $75 against Hi Way Advertising, Respondent. As grounds therefor it is alleged that on June 18, 1986, Respondent's sign on U.S. 19, 0.28 miles north of Candlewood Drive, was in the DOT right of way.

At the hearing, Petitioner called two witnesses, Respondent called one witness and eight exhibits were admitted Into evidence. The facts are not in dispute. Accordingly, proposed findings submitted by each party are accepted.

FINDINGS OF FACT

1. Respondent is a company owned by Jack Williams that leases portable signs to businesses desiring to advertise. These signs are constructed to attach letters to spell out the advertised message on the sign and illuminate the sign at night if desired. The signs are sufficiently small and light that they can be readily moved as the lessee desires.

   
   

2. On June 18, 1986, one of Respondent's signs leased to a car dealer was found to be in the DOT right-of-way along U.S. 19, 0.28 miles of Candlewood Drive and in front of the business advertised.

3. The nearest edge of the sign to the highway was 46 feet from the easterly edge of the pavement. The eastern edge of the DOT right of way at this point is 50 feet from the edge of the paved surface of U.S. 19. U.S. 19 is a federal-aid primary highway.

   
   

4. Respondent's lease agreement (Exhibit 8) is in the form of a statement billing the lessee of the sign for one month use of the sign. That statement provides it shall be the customer's responsibility to comply with state and local laws and regulations.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 479.11(8), Florida Statutes, prohibits placing a sign upon the right-of-way of any highway on the state highway system, interstate highway system, or federal-aid primary highway system. Section 479.107(5), Florida Statutes, provides the department shall assess a fine of $75 against the sign owner for any sign placed upon the state right of way. Provision for mitigating this penalty is not contained in this statutory provision.

   
   

7. While this may seem a harsh penalty to assess against the owner of a portable sign which can be moved by the lessee thereof at his discretion, this is a contingency for which the sign owner can protect himself by including in his lease agreement a hold harmless clause by which the lessee agrees to indemnify the owner for any fine assessed due to the fault of the lessee.

   
   

8. From the foregoing it is concluded that Hi Way Advertising is the owner of a sign located on the DOT right of way along U.S. 19 in Pasco County on June 18, 1986, and subject to the statutory fine of $75. It is

RECOMMENDED that a final order be entered assessing a fine of $75 against Hi Way Advertising.

ENTERED this 22nd day of January, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1987.

COPIES FURNISHED:

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

Jack Willman

Hi-Way Advertising 817 Florida Avenue Post Office Box 1989

New Port Richey, Florida 34291

Thomas Drawdy Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 86-002465

Orders for Case No: 86-002465