STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 88-0772T

) 88-0773T

KLEIN AND HEUCHAN, INC., ) 88-0774T

)

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: D. F. Heuchen, Jr., pro se

2040 Coachman Road NE Clearwater, Florida 33575

By Notices of Illegal Sign on Right of Way dated January 12 and 19, 1988, the Department of Transportation (DOT), Petitioner, seeks to levy fines of $75 each for three signs owned by Respondent which were located on the right-of-way of U.S. 19 in Pinellas County.

At the hearing, Petitioner called one witness, Respondent called one witness and seven exhibits were admitted into evidence. Proposed findings were not timely submitted.

FINDINGS OF FACT

1. On or about January 8, 1988, a DOT sign inspector observed two of Respondent's signs along U.S. 19, 50 feet north of C.R. 95 and 300 feet north of

   C.R. 95 which appeared to be on the right-of-way of U.S. 19.

   
   

2. The right-of-way of U.S. 19 at this location is 100 feet east and west of the centerline of U.S. 19 and 50 feet east and west of the edge of the pavement of U.S. 19. Respondent's two signs were 34 feet and 38 feet, respectively, from the edge of the paved surface of U.S. 19.

3. On or about January 13, 1988, a DOT sign inspector observed a sign owned by Respondent along U.S. 19, 50 feet north of Lake Street which appeared to be on the right-of-way of U.S. 19.

   
   

4. The right-of-way of U.S. 19 at this location extends 55 feet from the easterly edge of the pavement of U.S. 19. A measurement taken from the edge of the pavement to Respondent's sign showed the sign to be 46 feet from the edge of the pavement.

   
   

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

   
   

6. Respondent presented testimony that when its signs were erected they were located no closer to U.S. 19 than the power pole line which is generally located in the DOT right-of- way line.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. 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.

   
   

9. 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.

   
   

10. DOT has interpreted this statutory provision to impose insurer's liability on the owner of a sign found on the DOT right-of-way regardless of how the sign got on the right-of-way. While this result appears harsh under the circumstances in this case, this interpretation is binding. Natelson v. Dept. of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984). Accordingly, it is

RECOMMENDED that a Final Order be entered assessing a fine of $225 against Klein and Heuchan, Inc., for the three signs located in the right-of-way of 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

D. F. Heuchan, Jr. 2040 Coachman Road NE

Clearwater, Florida 34625

Kaye N. Henderson Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Docket for Case No: 88-000772

Orders for Case No: 88-000772