STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 88-0551T

) 88-0552T

GENEVA REALTY, )

)

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 April 20, 1988, in Tampa, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Anthony Gigliotti, pro se

Geneva Realty 1140 U.S. 19

Holiday, Florida 34691

By Notices of Illegal Sign on Right of Way dated January 19, 1988, the Department of Transportation (DOT), Petitioner, seeks to levy fines of $75 against each of two signs owned by Respondent. As grounds therefor, it is alleged that Respondent's signs 600 feet and 625 feet south of Candlewood Drive were on the right-of-way of U.S. 19 in Pasco County.

At the hearing, Petitioner called one witness, Respondent called one witness and six exhibits were admitted into evidence. Proposed findings have not been submitted by the parties.

FINDINGS OF FACT

1. On or about January 18, 1988, a DOT sign inspector observed Respondent's signs 600 and 625 feet south of Candlewood Drive in Pasco County on what appeared to be the easterly right-of-way of U.S. 19.

The right-of-way of U.S. 19 at this location extends 59 feet from the easterly edge of the pavement of U.S. 19. Respondent's signs were 49 feet from the edge of the paved surface of U.S. 19.

1. U.S. 19 is a Federal Aid Primary Highway.

2. Respondent located his signs east of the berm along U.S. 19 which he believed to be off of the DOT right-of-way.

   
   

   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. Respondent's sign was located on the DOT right-of- way as alleged.

   
   

5. Section 479.107, Florida Statutes, provides that any sign 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. DOT has interpreted this statutory provision to impose insurer's liability on the owner of a sign found on the DOT right-of-way. This agency interpretation of a statute it enforces is entitled to great weight. Natelson

v. Dept. of Insurance, 454 So.2d 31 (Fla. 1st DCA 1982). Accordingly, it is

RECOMMENDED that a Final Order be entered assessing a fine of $150 against Geneva Realty for the two signs located in the DOT right-of-way along U.S. 19.

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

Anthony Gigliotti Geneva Realty 1140 U.S. 19

Holiday, Florida 34691

Kaye N. Henderson Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Building

562 Suwannee Street Tallahassee, Florida 32399-0450

Docket for Case No: 88-000551

Orders for Case No: 88-000551