STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3646T

)

GLOBE AUTO IMPORTS, )

)

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 October 27, 1987, at Clearwater, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450

For Respondent: James A. Helinger, Jr., Esquire

209 Turner Street Clearwater, Florida 33516

By Notice of Illegal Sign on Right-of-Way dated July 23, 1987, the Department of Transportation (DOT), Petitioner, seeks to assess an administrative fine against Globe Auto Imports, Respondent. As grounds therefor it is alleged that Respondent's sign was located on the DOT right-of-way along

1. 19, 1500 feet south of Haines Bay Shore in Pinellas County.

   
   

   At the hearing, Petitioner called two witnesses and three exhibits were admitted into evidence. Respondent presented no evidence.

   
   

   Proposed findings submitted by Petitioner are accepted; however, many of those proposed findings have not been included herein because deemed unnecessary to the conclusions reached.

   
   

   FINDINGS OF FACT

   
   

   1. A DOT sign inspector observed a portable type sign in front of Respondent's automobile dealership on what appeared to be the right-of-way along the east side of U.S. 19. The arrow on the sign pointed to Respondent's business and electrical lines to the sign emanated from Respondent's property.

      
      

   2. The right-of-way along U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19. The easterly edge of the right-of-way at this location is 50 feet from the easterly edge of the north bound traffic lane.

   3. Measurements made by the inspector revealed the sign to be located 38 feet from the easternmost edge of the northbound lane of U.S. 19, thereby locating the sign 12 feet inside DOT's eastern right-of-way line.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   5. Section 479.11, Florida Statutes, provides that no sign shall be erected, used, operated, or maintained which is located upon the right-of-way of any highway on the State Highway System, Interstate Highway System or Federal Aid Primary Highway System.

      
      

   6. Section 479.107, Florida Statutes, provides that any sign located on the right-of-way of a highway in the State Highway System may be removed by the department; that upon determination by the department that such sign exists, the department shall post notice on the sign for the owner to remove the sign immediately; and that if the owner fails to so remove the sign, the department shall remove the sign whether or not a hearing has been requested by the owner or permittee. Subsection (5) thereof provides:

      
      

      The cost of removing a sign whether by the department or by an independent contractor, shall be assessed by the department against the owner of the sign. Furthermore, the department shall assess a fine of $75 against the sign owner for any sign which violates the requirements of this section.

      
      

   7. The assessment of the fine of $75 is mandatory under the clear wording of the statute. Accordingly, it is

RECOMMENDED that a Final Order be entered assessing a fine of $75 against Globe Auto Imports.

ENTERED this 16th day of December, 1987, in Tallahassee, Florida.

K. N. AYERS 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 16th day of December, 1987.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Gary Kissinger, State Outdoor Advertising Administrator

Department of Transportation

Haydon Burns Building, Mail Station 22 Tallahassee, Florida 32399-0450

James A. Helinger, Jr., Esquire

209 Turner Street Clearwater, Florida 33516

Kaye N. Henderson, P.E. Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-003646

Orders for Case No: 87-003646