STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3844T

)

DON'S PORTA SIGNS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

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 assess a $75 fine against Don's Porta Signs, Respondent. As grounds therefor, it is alleged that Respondent owned a portable sign on the DOT right-of-way along U.S. 19 near the intersection of Evans Road in Pinellas County.

At the hearing, Petitioner called one witness, Respondent called one witness, and four exhibits were admitted into evidence.

FINDINGS OF FACT

1. On July 20, 1987, a DOT sign inspector observed a sign owned by Respondent along U.S. 19 near the intersection of Evans Road in Pinellas County which appeared to be on the DOT right-of-way along U.S. 19.

   
   

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 and 50 feet from the edge of the pavement of U.S. 19.

   
   

3. The measured distance from the edge of pavement to the sign was 39 feet, thus placing the sign 11 feet inside the right of way.

4. Generally the line of power poles along U.S. 19 marks the DOT right-of- way; however, this is not necessarily true, particularly when additional right- of-way is acquired. One photograph of the sign (Exhibit 2), taken a short distance from the sign by the DOT sign inspector, would indicate part of the sign is inside the line of power poles. Another photograh (Exhibit 4), taken by Respondent from a greater distance from the signs, would indicate the sign is outside the line of power poles.

   
   

5. The check list (Exhibit 3), prepared by the DOT sign inspector at the time the sign was cited, does not reveal the location of the sign with respect to the right-of-way, yet the inspector testified to the measurements in finding no. 2 above.

   
   

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

   
   

8. 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 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. 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: 87-003844

Orders for Case No: 87-003844