STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0885T

)

DON'S PORTA SIGNS, )

)

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, 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: Herb Selak, pro se

1841 Nursery Road

Clearwater, Florida 33456

By Notices of Illegal Sign on Right of Way dated January 12 and 29, 1988, the Department of Transportation (DOT), Petitioner, seeks to levy an administrative fine of $75 for each of Respondent's three signs alleged to have been erected on the DOT right-of-way of U.S. 19, 500 feet south of C.R. 576, 0.1 mile south of C.R. 576 and 0.75 mile south of S.R. 582 in Pinellas County.

At the hearing, Petitioner called one witness, Respondent called one witness and thirteen exhibits were admitted in to evidence.

FINDINGS OF FACT

1. On or about January 11, a DOT sign inspector observed two signs owned by Respondent on what appeared to be the right-of-way of U.S. 19 in the vicinity of C.R. 576 in Pinellas County.

   
   

2. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet east and west of the edge she paved surface of U.S. 19.

   
   

3. U.S. 19 is a Federal Aid Primary Highway and part of the State Highway System

4. Measurements were taken on the distance from the edge of the paved surface of U.S. 19 to the signs. The sign located 500 feet south of C.R. 576 was 35 feet from the edge of the pavement, and the sign 0.1 mile south of C.R.

   576 was 38 feet from the edge of the pavement.

   
   

5. On or about January 27, 1988, the DOT sign inspector observed a sign

   0.75 mile south of C.R. 592 owned by Respondent on what appeared to be the

   right-of-way of U.S. 19 in Pinellas County. The right-of-way of U.S. 19 in this location is the same as in Finding No. 2 above.

   
   

6. Measurements taken of this sign from the edge of the pavement showed the sign to be 38 feet from the edge of the paved surface of U.S. 19, placing the sign some 12 feet inside the right-of-way boundary.

   
   

7. Respondent submitted photographs of other signs which appeared to be on the right-of-way of U.S. 19 in the vicinity of Respondent's signs which were not cited for being on the right-of-way. However, during the past year some 2,000 violations have been issued citing signs, principally along U.S. 19, with being located on the right-of-way.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. 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.

   
   

10. 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. 3

    
    

11. 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 1984). Accordingly, it is

RECOMMENDED that a Final Order be entered assessing a fine of $75 against Don's Signs for each of the three signs erected on 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

Herb Selak

1841 Nursery Road

Clearwater, Florida 33456

Kaye N. Henderson

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: 88-000885

Orders for Case No: 88-000885