n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3842T

)

DON'S PORTA SIGNS, )

)

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

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Herb Selak, pro se

1841 Nursery Road

Clearwater, Florida 33540

By Notice of Illegal Sign on Right of Way dated July 27, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy a fine of $75 against Don's Porta Signs, Respondent. As grounds therefor, it is alleged that Respondent owned a sign located on the right-of-way of U.S. 19, 500 feet south of S.R. 590. The transcript initially ordered was subsequently cancelled, and proposed findings have not been submitted.

FINDINGS OF FACT

1. On July 20, 1987, a DOT sign inspector observed a sign owned by Respondent alongside U.S. 19, 500 feet south of S.R. 590 which appeared to be on the DOT right-of-way of U.S. 19. Measurements of the distance of the sign from the pavement of U.S. 19 were taken.

   
   

2. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the west side of the pavement. The sign was located 32 feet from the edge of the pavement on the west side of U.S. 19 some 18 feet inside the right-of-way line.

   
   

3. The location of the DOT right-of-way is not readily determinable by a businessman desiring to erect a sign in front of his establishment. Generally, the power line poles are placed along the right-of-way line; however, this is

   not always an accurate method of locating the limit of the right-of-way. Here there were two lines of power line poles, and the sign was located between the pavement and the line of poles furthermost west of U.S. 19.

   
   

   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. Respondent's sign was located on the DOT right-of- way as alleged.

   
   

6. Section 479.107, Florida Statutes, provides that any sign 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 signs 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 Don's Porta Signs.

ENTERED this 4th day of March, 1988, 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 4th day of March, 1988.

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

State Outdoor Advertising Administrator

Department of Transportation Haydon Burns Building, M.S. 22 Tallahassee, Florida 32399-0450

Herb Selak, pro se Don's Porta Signs 1841 Nursery Road

Clearwater, Florida 33540

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Kaye N. Henderson Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 Atten: Eleanor F. Turner

Docket for Case No: 87-003842

Orders for Case No: 87-003842