STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3843T

)

DON'S PORTA SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing in the above-styled case was held at Tampa, Florida, on December 2, 1987, before K. N. Ayers, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

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

For Respondent: Herb Selak, pro se

1841 Nursery Road

Clearwater, Florida 34624

By Notice of Illegal Sign on Right-of-Way dated July 27, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy a $75 fine against Don's Porta Signs, Respondent. As grounds therefor, it is alleged that Respondent owned a sign located on the DOT right-of-way along U.S. 19 at 108th Street North in Pinellas County.

At the hearing, Petitioner called one witness, Respondent called one witness, and five exhibits were admitted into evidence. No transcript has been filed, and no proposed recommended orders received.

FINDINGS OF FACT

1. On July 20, 1987, a DOT sign inspector observed a portable outdoor advertising sign along U.S. 19 near the intersection of 108th Street North in Pinellas County which appeared to be located on the DOT right-of-way.

   
   

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 edge of the paved lane. Measurements taken showed the sign to be 38 feet from the edge of the pavement.

   
   

3. Photos taken of the sign at the time the sign was inspected reveal that the sign was damaged with the frame bent.

4. Around noon of the day the sign was inspected, Respondent was notified by the user of the sign that the sign's frame had been bent and the sign damaged. A second call to Respondent around 1:30 P.M. advised that a warning notice had been placed on the sign.

   
   

5. When Herb Selak arrived at the scene shortly thereafter, he observed the anchor missing from the sign and the sign damaged apparently having been hit by a construction company vehicle and pushed off of the parking lot where it had been located and anchored. Prior to the unauthorized removal of the sign onto the right-of-way by a third party, the sign was lawfully placed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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.

   
   

8. 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.

   
   

9. The assessment of the fine of $75 is mandatory under the clear wording of the statute and is so construed by the Department. While this result appears unduly harsh under the circumstances, redress of this result must come from the Legislature. 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: 87-003843

Orders for Case No: 87-003843