STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1737T

) 87-1738T

JIM HOLLIS, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on January 26, 1988, in Lake City, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner, Charles G. Gardner Department of Department of Transportation

Transportation: Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

For Respondent, Jim Hollis

Jim Hollis: 5107 East Colonial Drive

Orlando, Florida 32807

Respondent, Jim Hollis, has been represented throughout these proceedings by Timothy C. Laubach, 511 North Ferncreek Avenue, Orlando, Florida 32803, and Mr. Laubach is the attorney of record pursuant to Rule 22I-6.07, Florida Administrative Code. At no time has Mr. Laubach filed a motion to withdraw as required by Rule 22I-6.07(3). Respondent advised at the commencement of the formal hearing that Mr. Laubach would not be appearing, having advised Respondent that these proceedings were informal and that he would not need an attorney. Accordingly, Hollis proceeded to represent himself. Hollis then requested a continuance in order to have an attorney present to represent him. The request was denied because these cases have been continued six times (3 times at the request of Respondent and 3 times at the request of Petitioner).

ISSUE

The issue is whether Respondent's signs, located in Lafayette County, are illegal and should be removed.

BACKGROUND AND PROCEDURE MATTERS

At formal hearing, Petitioner, Department of Transportation (DOT), moved, ore tenus, for the consolidation of these two cases. The motion was granted and these two cases are consolidated.

The DOT presented the testimony of Glenel Bowden and Tom Brown, together with 7 exhibits admitted in evidence. Respondent, Jim Hollis (Hollis) presented his own testimony and that of Rosa Falconer.

The parties waived filing of a transcript and proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Hollis is the owner of two signs in Lafayette County. One is located on U.S. 27, 3.3 miles north of State Road 349. The other is located on U.S. 27,

   4.7 miles south of State Road 51. Both signs advertise Jim Hollis' River Rendezvous.

   
   

2. Hollis has no permit for either sign.

   
   

3. U.S. 27 is a federal-aid primary highway.

   
   

4. Both signs are approximately 55 feet from U.S. 27 and are visible from

   U.S. 27.

   
   

5. Signs may be permitted along a federal-aid primary highway only in commercial or industrial zoned areas or in commercial or industrial unzoned areas if there are three or more separate and distinct industrial or commercial uses within a 1600-foot radius of each other.

   
   

6. Lafayette County has not enacted zoning, therefore the area where the signs are is unzoned.

   
   

7. There are not three commercial or industrial uses within a 1600-foot radius of either sign, therefore the location of the signs is not an unzoned commercial or industrial area.

   
   

8. Glenel Bowden, Outdoor Advertising Inspector for DOT, first discovered the signs in March, 1987. He verbally requested that the signs be removed.

   When the signs were not removed, DOT filed and served Notice to Show Cause on each sign, Notice Nos. 87-5-B and 87-5-A, respectively (resulting in Case No.'s 87-1737T and 87-1738T, respectively).

   
   

9. Hollis does not believe he should be denied the right to leave his signs in place, but presented no evidence to respond to DOT's prima facie showing that the signs are not permitted.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 479.105, Florida Statutes, provides in pertinent part:

    
    

    1. Any sign which is located . . . adjacent to the right-of-way on any portion of the . . . federal-aid primary highway system, which sign was erected, operated, or maintained without the permit

       required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

       
       

12. Further, Section 470.111, Florida Statutes, permits signs along federal-aid primary highways only in commercial and industrial zoned areas or in commercial and industrial unzoned area.

    
    

13. An unzoned commercial or industrial area is one within 660 feet of the nearest edge of the highway which is not zoned, but which has three or more separate and distinct industrial or commercial uses located within a 1600-foot radius of each other. Section 479.01 (20), Florida Statutes.

    
    

14. Here it is undisputed that Hollis has no permit for his signs. Further Hollis is apparently unable to receive a permit for these two locations because of the lack of zoning in Lafayette County, together with the requirements of Sections 479.111 and 479.01(20).

    
    

15. Accordingly, the signs are illegal and must be removed pursuant to Section 479.105.

RECOMMENDATION

Based upon the foregoing Finding of Fact and Conclusion of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order

finding the two signs at issue to be illegal and ordering their removal.

DONE and ENTERED this 15th day of February, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 15th day of February, 1988.

COPIES FURNISHED:

Timothy C. Laubach, Esquire

511 North Ferncreek Avenue Orlando, Florida 32803

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Mr. Jim Hollis

5107 East Colonial Drive Orlando, Florida 32807

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Attention: Eleanor F. Turner

Docket for Case No: 87-001737

Orders for Case No: 87-001737