STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4495T

)

EGAN ADAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 24, 1988, at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

605 Suwannee Street

Tallahassee, Florida 32301

For Respondent: Egan Adams

Manager/President of Egan's Waterway Box 2, M.M. 107.5

Key Largo, Florida 33037 BACKGROUND AND PROCEDURAL MATTERS

This cause began on September 17, 1987, when the Department of Transportation (Department) issued a Notice of Illegal Sign on Right-of-Way to Egan Adams. The sign, an advertisement for "Egan's Waterway," was alleged to be located within the right of way of U.S. 1 (State Road 5). On September 30, 1987, the Respondent requested an administrative hearing and claimed the sign was not within the prohibited area. The case was forwarded to the Division of Administrative Hearings for formal proceedings on October 14, 1987.

At the hearing, Petitioner presented the testimony of William Kenney, outdoor advertising administrator, and Donald Gay, outdoor advertising inspector. Petitioner's exhibits 1, 2, and 3 were admitted into evidence. Egan Adams testified on behalf of Respondent and Respondent's exhibit 1 was received into evidence.

The parties were granted twenty days leave from the filing of the transcript within which to file their proposed findings of fact and conclusions of law. The transcript was filed with the Division of Administrative Hearings on March 10, 1988.

After the hearing, the Department filed proposed findings of fact and conclusions of law which have been considered. Rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Respondent is guilty of the violation alleged in the Notice of Illegal Sign dated September 17, 1987; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. On September 17, 1987, the Department issued a Notice of Illegal Sign on Right-of-Way for an outdoor sign located in the water and adjacent to U.S. 1 approximately 1.39 miles north of Jewfish Creek Bridge, Monroe County, Florida.

2. The sign in dispute was visible from the road and stated the following: Egan's Waterway

   Restaurant

   Gas

   Good Fast Food. Tourist Info

   M M 107 1/2

   (Right after bridge)

   
   

3. The sign did not have a state outdoor advertising permit attached to it. The sign was located approximately 85 feet from the centerline of the road.

   
   

4. U.S. 1, also known as State Road 5, is designated as a federal aid primary highway in Dade and Monroe Counties.

   
   

5. Egan Adams is manager and president of Egan's Waterway. Mr. Adams admitted he is the owner of the sign in dispute.

   
   

6. The sign was mounted on a pontoon-type vessel and was anchored in knee- deep water. The vessel had been registered as a boat and identified by Florida 7454 FG.

   
   

7. Prior to issuing the Notice of Illegal Sign, the Department's employee had warned Mr. Adams that the sign was located within the right-of-way.

   
   

8. On or about September 19, 1987, Mr. Adams moved the sign further away from the road and removed the orange violation sticker which had been posted on it.

   
   

9. The right-of-way in the vicinity of the sign in dispute is 200 feet wide. The centerline of the right-of-way corresponds to the centerline of the road.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

11. Section 479.11, Florida Statutes (1987), provides in pertinent part: No sign shall be erected, used,

    operated, or maintained:

    1. Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in Sections 479.111 and 479.16.

       * * *

       (8) 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.

       
       

12. Section 479.01(14), Florida Statutes (1987), defines "sign" as:

    
    

    (14) . . . means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back- to-back, side-to-side, stacked, or double-faced display, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department.

    
    

13. Section 479.01(18), Florida Statutes (1987), defines "sign structure"

    as:

    
    

    (18) . . . all the interrelated parts and material, such as beams, poles, and stringers, which are constructed for the purpose of supporting or displaying a message or informative contents.

14. Section 479.107, Florida Statutes (1987), provides, in pertinent part:

    
    

    1. Any sign located on the right- of-way of a highway on the State Highway System or on any portion of the interstate or federal-aid primary highway system which is in violation of Section 479.11(8) may be removed by the department as provided in this section.

       * * *

       (5) The cost of removing a sign, whether by the department or 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.

       
       

15. The exceptions available in Sections 479.111 and 479.16, Florida Statutes (1987), are not applicable to the case at issue.

    
    

16. The Department has proved the sign owned by Egan Adams advertising Egan's Waterway was located upon the right-of-way in violation of Section 479.11, Florida Statutes (1987). That Mr. Adams subsequently moved the sign further away does not excuse the violation.

    
    

17. Respondent's mistaken belief that registration as a boat somehow exempts the sign is unfounded. Moreover, it is clear that the "sign" would be prohibited from being within 660 feet of the nearest edge of the right-of-way.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Transportation enter a Final Order assessing a fine of $75.00 against Egan Adams pursuant to Section 479.107, Florida Statutes (1987).

DONE and RECOMMENDED this 1st day of April, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 1st day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4495T

Rulings on Petitioner's proposed findings of fact:

1. Paragraph 1 is accepted.

2. Paragraphs 2-6 are accepted.

3. The first sentence of paragraph 7 is accepted. The rest of paragraph 7 is rejected as a conclusion of law, argumentative.

4. Paragraphs 8 and 9 are accepted.

COPIES FURNISHED:

Charles G. Gardner, Esquire 605 Suwannee Street

Tallahassee, Florida 32301

Egan Adams Manager/President of Egan's Waterway

Box 2, M.M. 107.5

Key Largo, Florida 33037

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 87-004495

Orders for Case No: 87-004495