STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3982T

) LITTLE HICKORY CONCRETE LAWN ) ORNAMENTS, )

)

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 32399-0450

For Respondent: Glen Milsap, pro se

6012 Land O'Lakes Boulevard Land O'Lakes, Florida 34639

By Notice of Illegal Sign on Right-of-Way dated August 11, 1987, the Department of Transportation (DOT), Petitioner, seeks to levy a fine of $75 against Little Hickory Concrete Lawn Ornaments, Respondent. As grounds therefore it is alleged that Respondent owned a sign located on the DOT right- of-way alongside U.S. 41, 0.3 mile north of CR 583 in Pasco County.

At the commencement of the hearing the parties stipulated that the sign was two feet inside the right-of-way line at the time of the inspection. Thereafter Respondent called one witness. The facts here involved are not disputed.

FINDINGS OF FACT

1. On or about August 11, 1987, Respondent owned a sign advertising the business which was located on the DOT right-of-way along U.S. 41 in Pasco County.

   
   

2. When Respondent moved into its present location it placed some of its castings on display on the right-of-way alongside its business. The co-owner was told by the Deputy Sheriff that the castings had to be removed from the

   right-of-way but it was all right to leave the sign on the DOT right-of-way. Accordingly, until the sign was cited for the violation, Respondent thought its sign was legally erected.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. 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.

   
   

5. 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.

   
   

6. 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 Little Hickory Concrete Lawn Ornaments.

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

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

Little Hickory Concrete Lawn Ornaments 2419 B. U.S. 41

Land O'Lakes, Florida 33643

Kaye N. Henderson, P.E. Secretary

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-003982

Orders for Case No: 87-003982