STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2242T

)

EVA F. CINTRON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in Chipley, Florida, on September 10, 1987, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

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

Department of Transportation, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Eva F. Cintron, Pro Se

Post Office Box 56 Cottondale, Florida 32431

This case arose by notice of alleged violation dated May 7, 1987, by the Petitioner, notifying Eva Cintron, Respondent, that her sign located on U.S. 231, 1.78 miles south of SR 73 East in Jackson County, Florida, was erected without a state sign permit. Subsequently, Cintron requested a permit and was denied.

The issue to be resolved is whether the sign must be removed because Cintron has no state sign permit, or whether she is entitled to a permit for said sign.

DOT presented the testimony of Tom Bowen and had five exhibits admitted in evidence. Respondent, Cintron, presented her own testimony and had one exhibit admitted in evidence.

A transcript of the proceedings was filed on October 5, 1987. DOT filed its proposed findings of fact and conclusions of law on October 12, 1987.

Cintron waived filing of a proposed order. All proposed findings of fact have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. A Department of Transportation (DOT) Outdoor Advertising Inspector was doing an inventory, during May, 1987, on U.S. 231, in Jackson County, Florida, when he observed a sign that was visible from the main traveled way of the highway that was not on the sign inventory as being permitted. U.S. 231 is a federal-aid primary highway. The location is 1.78 miles south of SR 73, on the west side of U.S. 231, (southbound side ), and is 32 feet from the right edge of the southbound lane (U.S. 231).

   
   

2. The restaurant the sign is advertising is located to the south of the sign, on the east side of U.S. 231, (northbound side). Mr. and Mrs. Cintron purchased the restaurant in October, 1985, and considered subject sign part of the business. The sign in question was erected during the summer of 1985 by the original owner. The Department's Inspector certified that said sign was removed by 6/11/87.

   
   

3. There is one business, within 800 feet of the sign site, on the west side, a Gulf station that contains a convenience store and tire store in the same building on the same premises. The sign site is located in an unzoned area within the city limits of Cottondale, Florida. There is a repair business on the west side of the highway and a septic tank business on the east side of the highway. Both businesses are north and in excess of 1600 feet from the site in question.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefore, pursuant to Chapter 479, Florida Statutes.

   
   

5. Section 479.07(1), Florida Statutes (1985), provides in part:

   
   

   1. Except as provided in s. 479.16, a person may not erect, operate, use or maintain, or cause to be erected, operated, used or maintained, any sign-on the State Highway System outside an incorporated 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.

      
      

      Section 479.01, Florida Statutes, provides in part:

      
      

      (20) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate or federal-aid primary system not zoned by state or local law, regulation, or ordinance, in which there are located three or more separate and distinct industrial or commercial uses

      located within a 1,600-foot radius of each other and generally recognized as commercial or industrial by zoning authorities in this state.

      
      

      Section 479.105, Florida Statutes, provides in part:

      
      

      (1) Any sign which is located adjacent to the right-of-way of any highway on the State

      Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or 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.

      
      

6. Eva Cintron purchased a restaurant that had an off-premise sign located in an unzoned area on the property of a Gulf station within 800 feet of the station. The Gulf station contains a convenience store and tire store, but does not have three separate and distinct businesses. Also, the site in question is more than 1600 feet from two other businesses and could not qualify as an unzoned commercial area. The subject site is an off-premise location within 660 feet of a federal-aid primary highway and requires a state sign permit, but cannot be permitted because it is in an unzoned noncommercial area. It was properly removed because it was in violation of the statutes for not having a state sign permit and Cintron cannot receive a permit for said site.

RECOMMENDATION

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

RECOMMENDED that the Department of Transportation enter a Final Order finding that the sign in question located on U.S. 231, 1.78 miles south of SR 73 East, in Jackson County, Florida, was in violation of the statutes for not having a state sign permit, was properly removed, and does not qualify for issuance of a permit.

DONE AND ORDERED this 27th day of October, 1987, in Tallahassee, Leon County, Florida.

DIANE K. KIESLING

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 27th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2242T

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on the proposed findings of fact submitted by the Petitioner in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DEPARTMENT OF TRANSPORTATION

DOT's proposed findings of fact 1-3 are adopted in substance as modified in Findings of Fact 1-3.

COPIES FURNISHED:

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Eva F. Cintron, Pro Se Post Office Box 56 Cottondale, Florida 32431

Vernon Whittier, Jr., Esquire Rivers Buford, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450

Docket for Case No: 87-002242

Orders for Case No: 87-002242