STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 88-0527T

) 88-0528T

RF/MAX ADVANTAGE REALTY, INC., )

)

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 cases on April 20, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Mark E. Swartsel, pro se

8410 U.S. Highway 19, Suite 105 Port Richey, Florida 34668

By Notices of Illegal Sign on Right of Way dated January 8, 1988, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine of $75 against Respondent for each of two signs, one along U. S. 19 and the other along S. R. 52, on grounds these signs were located on the DOT right-of- way.

At the commencement of the hearing, Petitioner voluntarily dismissed the allegations of illegal sign on right-of-way along U. S. 19 (Case No. 88-0527T). Thereafter, Petitioner called one witness, Respondent called one witness, and six exhibits were admitted into evidence. No proposed findings have been submitted.

FINDINGS OF FACT

1. On January 4, 1988, a DOT sign inspector observed Respondent's sign along S. R. 52 on what appeared to be the right-of-way of S. R. 52. S. R. 52 is part of the State Highway System, and the right-of-way of S. R. 52 is 100 feet wide.

   
   

2. No right-of-way maps for S. R. 52 have been prepared by DOT, and no survey map showing the extent of the right-of-way with respect to the centerline of S. R. 52 was presented.

3. The DOT inspector located markers he assumed to be right-of-way markers on both sides of S. R. 52. Measurements between these markers which are on opposite sides of S. R. 52 is 100 feet. The marker on the same side of S. R. 52 as Respondent's sign was located 40 feet from the edge of the pavement of S. R.

1. Respondent's sign was measured to be 29 feet from the edge of the pavement of S. R. 52.

   
   

   1. Respondent presented a survey map (Exhibit 5) of the property abutting

      S. R. 52 to the north which shows a 1/4 section corner located in the paved surface of S. R. 52, 56.65 feet south of the right-of-way line. S. R. 52, which is an east-west direction road, from this 1/4 section corner moves slightly south of west, clearly indicating that neither the right-of-way nor S. R. 52 follows the section line. Approximately 1000 feet west of the location of Respondent's sign the divergence in the right-of-way line and the section line is 87.37 feet. This divergence is sufficient to cast serious doubts on the location of the DOT right-of-way for S. R. 52 at this location.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   3. Here the burden is on Petitioner to prove, by a preponderance of the evidence, that Respondent's sign was located on the right-of-way of S. R. 52. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Absent credible evidence establishing the location of the DOT right-of-way for S. R. 52, Petitioner has failed to prove that Respondent's sign was located on the right-of-way of S. R. 52. It is

RECOMMENDED the Notices of Illegal Sign on Right of Way charging Respondent with violating Section 479.107, Florida Statutes, be withdrawn and these proceedings dismissed.

ENTERED this 12th day of May, 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 12th day of May, 1988.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Mark E. Swartsel 8410 U. S. 19

Suite 105

Port Richey, Florida 34668

Kaye N. Henderson

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458 Atten: Eleanor F. Turner, MS 58

Thomas H. Bateman, III General Counsel

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Docket for Case No: 88-000527

Orders for Case No: 88-000527