STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3824T

)

JUDY SMITH HAIRSTYLING, )

)

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 2, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0458

For Respondent: Judy Smith, pro se

203 Sofia Drive

Lake O'Lakes, Florida 33549

By Notice of Illegal Sign on Right-of-Way dated August 11, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine of $75 against Judy Smith Hairstyling, Respondent. As grounds therefor it is alleged that Respondent owned a sign located on the U.S. 41 right-of-way, 0.5 mile north of CR 54 in Pasco County.

At the hearing, Petitioner called one witness, Respondent called one witness, and three exhibits were admitted into evidence. The parties waived the right to submit proposed recommended orders.

FINDINGS OF FACT

1. On or about August 11, 1987, a DOT sign inspector observed a portable sign opposite Respondent's place of business advertising Respondent's business and exhibiting Respondent's telephone number, which appeared to be on the right- of-way of U.S. 41 in Pasco County.

   
   

2. The right-of-way of U.S. 41 at this location extends fifty feet east and west of the centerline of U.S. 41 and 38 feet from the edge of the paved lane on the east side of U.S. 41. Respondent's sign was located 28 feet from the edge of the northbound lane of U.S. 41, some 10 feet inside the eastern right-of-way line at this location.

3. Respondent has occupied the same building for the past 10 or 11 years and the sign, which is portable, has been in the same location since she opened her salon. No one ever told Respondent that the sign was located on the DOT right-of-way before the sign was cited for the violation. As soon as she was advised the sign was illegal Respondent relocated the sign off the right-of-way.

   
   

   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.

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 Judy Smith Hairstyling.

ENTERED this 8th 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 8th day of December, 1987.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Gary Kissinger, State Outdoor Advertising Administrator Department of Transportation

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

Judy Smith Hairstyling

489 U.S. Highway 41 Unit #1

Land O'Lakes, Florida 34639

Kaye N. Henderson, P.E. Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 87-003824

Orders for Case No: 87-003824