Judges: K. N. AYERS
Agency: Department of Transportation
Latest Update: Dec. 11, 1987
Summary: Where sign placed in right of way by third party and promptly removed by owner penalty not mandatory.
87-4233STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4233T
) OLYMPIA RESTAURANT & PIZZA, )
)
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.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0458
For Respondent: Michael Malinka, pro se
1301 U.S. 19 North
Palm Harbor, Florida 33563
By Notice of Illegal Sign on Right-of-Way dated July 31, 1987, the Department of Transportation (DOT), Petitioner, seeks to impose an administrative fine of $75 on Olympia Restaurant & Pizza, Respondent. As grounds therefore it is alleged Respondent owned a sign located on the DOT right-of-way along U.S. 19 at the intersection with Highlands Boulevard in Pinellas 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 orders to the Hearing Officer.
FINDINGS OF FACT
On July 24, 1987, a DOT sign inspector observed Respondent's sign opposite Respondent's place of business and apparently on the DOT right-of-way of U.S. 19. Measurements were taken by the inspector to locate the sign with respect to U.S. 19.
The right-of-way of U.S. 19 at this location is 100 feet east and west of the centerline of U.S. 19. The right-of- way extends fifty feet west of the western edge of the southbound lane of U.S. 19, thus locating the sign some 12 feet inside the right-of-way boundary.
Respondent had been advised by a DOT sign inspector where this portable sign could be legally located and the sign was placed in that location out of the DOT right-of-way. On the day the sign was tagged for being on the right-of- way, the man mowing the grass around Wendy's restaurant adjacent to Respondent's restaurant moved the sign to facilitate the mowing. Respondent's owner had previously told the mower to be sure to return the sign to its authorized location if moved to facilitate mowing but, on this occasion, the sign was not immediately relocated to its authorized location.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
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.
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 appears mandatory under the clear wording of the statute. However, a careful reading of section 479.107(1),F.S., does not indicate that the legislature intended to impose insurers liability upon a sign owner whose sign is wrongfully removed from a lawful position to an unlawful position on the right-of-way by a third party. It is a cardinal rule of statutory construction that the entire statute under construction must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a review of the whole law in para materia, the reviewing court will determine legislative intent. State vs. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977). In statutory construction legislative intent is the pole star by which courts must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well settled canons of construction. Wakulla County vs. Davis, 395 So.2d 540 (Fla. 1981).
Applying these precedents to the conclusion that insurers liability was not intended to be imposed on the sign owner, it is concluded that no penalty should be assessed when neither the owner of the sign nor his agent intentionally or negligently located the sign on the DOT right-of-way and removed the sign therefrom as soon as it became known the sign was so located. It is
RECOMMENDED that a Final Order be entered assessing no penalty against Olympia Restaurant & Pizza.
ENTERED this 11th 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 11th 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
Olympia Restaurant & Pizza 1301 U.S. Highway 19
Palm Harbor, Florida 33563
Kaye N. Henderson, P.E. Secretary
Department of Transportation 605 Suwannee Street
Haydon Burns Building Tallahassee, Florida 32399-0450
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 87-4233T
OLYMPIA RESTAURANT & PIZZA,
Respondent.
/
FINAL ORDER
The record in this proceeding and the Recommended Order of the Hearing Officer have heed reviewed. No exceptions to the Recommended Order have been filed.
The Findings of Fact in the Recommended Order are considered correct and are incorporated herein as part of this Final Order. The Conclusions of Law are considered correct with the following exception:
The Department rejects the Hearing Officer's conclusion that the assessment of the $75 fine can be waived if the sign is moved to an unlawful position on the right of way by a third party. An unobstructed right of way is essential for the safe, efficient operation of the state highway system. Section 479.107(5), Fla. Stat., provides in pertinent part:
Furthermore, the department shall assess a fine of $75 against the sign owner for any sign which violates the requirements of this section. [Emphasis added]
The statute places the liability to the Department or the sign owner, so the sign owner would be responsible for seeking reimbursement from the responsible party. As the Hearing Officer correctly noted, the foregoing language imposes upon the Department the duty to assess the fine. In view of this unequivocal, mandatory language the Department has no discretion to waive or adjust the fine based on the facts of any particular case. Accordingly, it is
ORDERED that the $75 fine provided for in Section 479.1O7(5), Fla. Stat., be and the same is hereby assessed against Respondent, Olympia Restaurant & Pizza, for violation of Section 479.11(8), Fla. Stat. (1985). Within 15 days of this order, payment shall be made to:
Clerk of Agency Proceedings
Florida Department of Transportation Mail Station 58
562 Haydon Burns Building 605 Suwannee Street
Tallahassee, Florida 32399-0450
DONE AND ORDERED this 20th day of January, 1988.
KAYE N. HENDERSON, P.E.
Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
Copies furnished to:
K. N. Ayers, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Olympia Restaurant & Pizza 1301 U.S. Highway 19
Palm Harbor, Florida 33563
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32399
Gary J. Kissinger, Administrator Outdoor Advertising
Department of Transportation Haydon Burns Building Tallahassee, Florida 32399
NOTICE OF RIGHT TO JUDICIAL REVIEW
Judicial review of agency final order may be Pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Docket for Case No: 87-004233
Orders for Case No: 87-004233
| Issue Date |
Document |
Summary |
|
Jan. 20, 1988 |
Agency Final Order
|
|
|
Dec. 11, 1987 |
Recommended Order
|
Where sign placed in right of way by third party and promptly removed by owner penalty not mandatory.
|
