Judges: JAMES E. BRADWELL
Agency: Department of Transportation
Latest Update: Mar. 01, 1989
Summary: The issue presented for decision herein is whether or not the Respondent's sign was erected and/or maintained in violation of Chapter 479, Florida Statutes, and, if so, whether it should have been removed for not having a state sign permit.Respondent's sign was not erected with the requisite permits.
88-2801.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2801
) SOUTHERN MOBILE HOMES OF OKEECHOBEE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Adninistrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in the above-styled case on December 14, 1988, in Okeechobee, Florida. The transcript of the proceedings was received on February 3, 1989. Petitioner has submitted a Proposed Recommended Order which was considered in preparation of this Recommended Order. Proposed findings not incorporated herein are the subject of specific rulings in an appendix attached hereto.
APPEARANCES
For Petitioner: Vernon L. Whittier, Jr., Rsguire
Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0458
For Respondent: Jeffrey K. Edwards, President
Southern Mobile Homes of Okeechobee 3801 North West 160th Street Okeechobee, Florida 34972
ISSUE PRESENTED
The issue presented for decision herein is whether or not the Respondent's sign was erected and/or maintained in violation of Chapter 479, Florida Statutes, and, if so, whether it should have been removed for not having a state sign permit.
INTRODUCTION AND BACKGROUND
Based on a Notice of Alleged Violation dated March 7, 1988, by the Department of Transportation, Respondent, Southern Mobile Homes of Okeechobee, was notified that its sign located 13.17 miles north of Road 78 on the northbound side of Highway 441 facing north and southbound traffic was erected and maintained without a state sign permit in violation of Section 479.105(1)(a), Florida Statutes. Respondent timely requested a formal hearing, the matter was noticed for hearing and was heard on December 14, 1988.
FINDINGS OF FACT
Respondent, Southern Mobile Homes of Okeechobee, owns the Otter Creek Acres sign that was erected on the northbound side of Highway 441, U.S. 441, a federal aid primary highway, in Okeechobee County, Florida, 13.17 miles north of Highway 78 (S.R. 78). The sign carried a two face copy approximately 8 x 24 feet, located approximately 100 feet from the highway right-of-way and was visible from the main travel-way of the road.
Respondent did not obtain a state sign permit for the sign before it was erected. No state sign permit was obtained after it was erected and maintained although Respondent obtained a county sign permit and attempted to obtain a state permit. Since the area in which the sign is erected is zoned agricultural/conservation, a state permit cannot be issued.
Richard Hayford, Petitioner's Outdoor Advertising Inspector for Okeechobee, County, made a routine Inventory of permitted signs in the County on February 25, 1988. At that time, Respondent's sign came under investigation. Respondent's sign was erected without a state sign permit on U.S. 441.
Inspector Hayford did not post a Notice of Violation on the sign because, he contends, there was water in a canal between the sign and the highway which made it impossible to post the notice on the sign. Hayford issued a Notice of Violation dated March 7, 1988 which was sent by certified mail to Otter Creek Acres in Okeechobee, Florida, advising that the sign was in violation of Subsection 479.105(1)(a), Florida Statutes, for not having a state permit and indicating removal.
Otter Creek Acres is owned by Mr. Edwards' parents and is operated by him in conjunction with Southern Mobile Homes in Okeechobee at the same address.
On April 25, 1988, Inspector Hayford posted a Notice of Violation on the sign as the canal was then dry enough for him to post the Notice.
On May 2, 1988, the sign was ordered removed by the Department based on the March 7, 1988 violation notice.
Edwards erected the sign during September, 1985. When he received the March 7, 1988 Notice of Violation, Edwards contacted Inspector Hayford who provided him with a packet of materials containing a permit application, directions, rules and regulations for outdoor advertising and a copy of Chapter 479, Florida Statutes.
Respondent spent $360 for each side of the double sided sign plus taxes to the Sign Stop, an outdoor advertising company in Okeechobee, Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
The authority of the Department of Transportation is derived from Chapter 479, Florida Statutes.
The subject sign involved herein was required to be permitted by the Department of Transportation pursuant to Section 479.07(1), Florida Statutes.
Section 479.105, Florida Statutes provides in pertinent part:
Any sign which is located adjacent to the right-of-way of any highway on the
State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated or maintained without the permit required by Section 479.07(1) having been issued by the Department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.
Upon a determination by the Depart- ment that a sign is in violation of Section 479.07(1), the Department shall prominently post on the sign face a notice stating that the sign is illegal and must be removed within 30 days after the date on which the notice was posted. However, if the sign bears the name of the licensee or the name and address of the nonlicensed owner, the Department shall, concurrently with and in addition to posting the notice on the sign, provide a written notice to the owner, stating that the sign is illegal and must be permanently removed within the 30-day period specified on the posted notice. The written notice shall further state that the sign owner has a right to request a hearing, which request must be filed with the Department within 30 days after the date of the written notice. However, the filing of a request for a hearing will not stay the removal of the sign.
If pursuant to the notice provided, the sign is not removed by the sign owner within the prescribed period, the Department shall immediately remove the sign without further notice; and, for that purpose, the
employees, agents, or independent contractors of the Department may enter upon private property without incurring any liability for so entering.
For purposes of this subsection, a notice to the sign owner, when required, constitutes sufficient notice; and notice is not required to be provided to the lessee, advertiser, or the owner of the real property on which the sign is located.
Prior to removal, the Department was required to post the Notice of Violation on the subject sign, which was done on April 28, 1988. Thereafter, Respondent was allowed 30 days from that date to comply with the applicable provisions of Chapter 479 and provide written notice of compliance to the Department by providing it to the District Administrator of Outdoor Advertising,
Florida Department of Transportation (Petitioner's Exhibit 1). The subject sign was removed by the Department within ten days following the posted Notice of Violation on the subject sign and was not done in accord with the provisions of Section 479.105(1)(a), Florida Statutes as Respondent was not allowed sufficient time to comply with the Notice to Show Cause. Based thereon, it is concluded that although the sign involved was illegally erected and maintained, Respondent is entitled to be compensated for the removal by the Department of Transportation.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
1. The Department of Transportation enter a Final Order finding that Respondent's sign was illegally removed and is entitled to be compensated for such removal in the amount of $756, which amount includes the total amount expended by the Respondent for the erection of the sign in question.
DONE and ORDERED this 1st day of March, 1989 in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1989.
COPIES FURNISHED:
Jeffrey K. Edwards, President Southern Mobile Homes of Okeechobee 3801 N.W. 160th Street
Okeechobee, Florida 34972
Vernon L. Whittier, Jr., Esquire Department of Transportation
605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458
Kaye Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458
General Counsel
Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. Case No. 88-2801
SOUTHERN MOBILE HOMES OF OKEECHOBEE,
Respondent.
/
FINAL ORDER
The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter referred to as "Department"), has filed Exceptions to Recommended Order which are considered and addressed below.
The Conclusions of Law in the Recommended Order are amended as follows
The issue set forth in the statute is whether the sign was erected without a permit. The facts in this case do not support a conclusion that the sign was wrongfully or erroneously removed, because there is no question that the sign was an illegal sign. The Hearing Officer concluded not only that the sign was illegal for failure to have a state permit, but also, that a state permit could not be issued because of its location within a agricultural/conservation area.
The intent of the posting provisions of subsection (1)(a) of s. 479.105, Florida Statutes, is to provide the sign owner notice that the Department considers its sign to be illegal and that the sign is to be removed within 30 days. Although it was physically impossible to post the notice on the sign itself, the March 7, 1988, certified letter was received by principals of Respondent. However, the removal of Respondent's sign by the Department did not follow the technical requirements of the statute for the removal of unpermitted, illegal signs.
Pursuant to s. 479.105(3), Florida Statute (1987), the cost of the removal of an illegal sign is to be assessed against the owner of the sign. The Department's Exhibit 9 depicts the removal cost of the subject sign as $159.50.
Accordingly, the Hearing Officer's recommendation is rejected and it is
ORDERED that since the Department of Transportation did not comply with the statutory notice provisions, the Department shall compensate Respondent for the sign. However, compensation shall be reduced by the removal cost of $159.50, because Respondent's sign was removed as an illegal, unpermitted sign.
Therefore the Department shall pay Respondent the sum of $596.50 within 30 days of the date of this order.
DONE AND ORDERED this 2nd day of June 1989, at Tallahassee, Florida.
KAYE N. HENDERSON, P.E.
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Deputy Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
COPIES FURNISHED TO:
James E. Bradwell Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Jeffrey K. Edwards, President Southern Mobile Homes of Okeechobee 3801 N.W. 160th Street
Okeechobee, Florida 34972
Vernon L. Whittier, Jr., Esquire Department of Transportation
605 Suwannee Street
Tallahassee, Florida 32399-0458
Gary J. Kissinger
Motorist Information Services Coordinator Office of Right of Way
Department of Transportation Haydon Burns Building Tallahassee, Florida 32399
Docket for Case No: 88-002801
Orders for Case No: 88-002801
