STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARING

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5190T

)

JIM DAVENPORT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on April 14, 1988, in Daytona Beach, Florida, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Jim Davenport, pro se

1005 North Dixie Highway

New Smyrna Beach, Florida 32069 BACKGROUND

On September 17, 1987, the Department of Transportation, Petitioner, issued a Notice of Alleged Violation and Notice to Show Cause. The Notice charged that Jim Davenport, Petitioner, owned a sign which was in violation of Sections 479.07(1) and 479.07(9)(a)2., Florida Statutes. By letter dated November 5, 1987, Respondent expressed confusion about what the problem was and asked for a waiver of the applicable requirements. Petitioner treated the letter as a request for a hearing under Section 120.57(1), Florida Statutes, and requested that the Division of Administrative Hearings arrange for the hearing.

At the hearing, Petitioner offered the testimony of two witnesses and offered five exhibits, which were accepted into evidence. Respondent testified on his own behalf. After the hearing, Petitioner filed proposed findings of fact which are accepted in their entirety.

ISSUE

Whether Respondent's sign is in violation of the applicable Florida Statutes?

FINDINGS OF FACT

1. Respondent is the owner of a sign located 3.138 miles south of State Road 5A on the southbound side of Highway U.S. 1. The sign is visible form the

   U.S. 1, and is attached to another sign.

   
   

2. The other sign is owned by Lamar Advertising, was erected in 1964, and was issued permit no. 746-08 by Petitioner. The annual renewal fees for the permit have been paid.

   
   

3. Respondent's sign has never been issued a permit by Petitioner.

   
   

4. U.S. 1 is a federal-aid primary highway.

   
   

5. Respondent's sign advertises his telephone number and business, which is at a different location than the sign.

   
   

6. Respondent's sign is located within 1,000 feet of Lamar Advertising's sign.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administration Hearings has jurisdiction over the parties to, and the subject matter of, this case. Sec. 120.57(1), Fla. Stat.

   
   

8. Chapter 479, Florida Statutes, grants Petitioner the power to regulate the placing of signs in areas adjacent to highways in this state. Secs. 479.015 and 479.02, Fla. Stat. Section 479.07, Florida Statutes, provides that, with certain exceptions, no sign may be erected or maintained without first obtaining a permit from Petitioner. Also, Section 497.07(9)(a), Florida Statutes, provides that a permit shall not be granted for any sign for which a permit had not been previously granted, unless such sign is at least one thousand feet from any other permitted sign on the same side of a federal-aid primary highway. Finally, Section 479.105, Florida Statutes, provides for the removal of signs which are erected or maintained without a permit.

   
   

9. In this case, Respondent's sign does not now have, and never has had, a permit from Petitioner. Also, since it is within 1,000 feet of a sign which has a permit, a permit cannot be issued.

   
   

10. Respondent did not challenge the facts in this case, but argued that the sign in question had been there for a long time without any problems, and requested a waiver of the spacing requirement. Unfortunately, the controlling statutes do not appear to provide for waivers.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order requiring that Respondent's

sign be removed.

DONE and ENTERED this 20th day of May 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

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 20th day of May 1988.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Attorney Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Jim Davenport

1005 North Dixie Highway

New Smyrna Beach, Florida 32069

Kaye N. Henderson, P.E., Secretary Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Attn: Eleanor F. Turner, Mail Station 58

Thomas H. Bateman, III General Counsel

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-005190

Orders for Case No: 87-005190