STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2019T

)

HEINL'S NURSERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 26, 1989, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

Far Petitioner: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether a sign owned by the Respondent is in violation of Section 479.07(1) and 479.11(1), Florida Statutes, and, if so, what remedial action should be taken by the Department of Transportation.

PRELIMINARY STATEMENT

The Respondent did not appear at the hearing in this case. Approximately

15 minutes after the time for which the hearing was scheduled to commence, the Hearing Officer directed that inquiry be made by telephone as to whether the Respondent intended to appear for the hearing. Counsel for the Petitioner was advised that the Respondent did not intend to appear for the hearing.

Thereupon, the hearing commenced, at which time the Petitioner offered the testimony of one witness and offered three exhibits, all of which were received. At the conclusion of the hearing the Petitioner announced that it did not intend to file a transcript in this case and that it waived its right to file a proposed recommended order.

FINDINGS OF FACT

1. Heinl's Nursery, a division of American Nursery Products, Inc., is the owner of a sign located in Dade County, Florida, on the west side of Krome Avenue (State Road 997) about 36 feet north of its intersection with S.W. 126th

   Street. The subject sign is located approximately 23 feet from the right-of- way of Krome Avenue. The subject sign has been at that location for a number of years. The face of the sign is made of wood and measures approximately 4 feet by 8 feet. The sign is mounted on metal poles. The message on the sign consists of the owner's name, a logo or graphic decoration, and an arrow pointing towards the right. The Department of Transportation has not issued a permit for the sign.

   
   

2. The area in which the sign is located is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The sign is not located on the business premises of the sign owner. Krome Avenue (State Road 997) is part of the federal-aid primary highway system. By notice dated March 21, 1989, the owner of the sign was advised that the sign was in violation of the applicable statutes and must be removed.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

4. Section 479.07(1), Florida Statutes, provides, with exceptions not pertinent here, that

   
   

   ... a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on...any portion of the interstate or federal-aid primary highway system

   without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section.

   
   

5. Section 479.105, Florida Statutes, provides for the removal of signs which are erected, operated, or maintained without the permit required by Section 479.07(1), Florida Statutes. If the sign owner does not remove the sign following notice from the Department, the Department shall remove the sign without further notice.

   
   

6. Section 479.11(1), Florida Statutes, provides, with exceptions not pertinent here, that no sign shall be erected, used, operated, or maintained "[w]ithin 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system. "

   
   

7. The evidence in this case establishes that the subject sign is located in a prohibited area and is, therefore, ineligible for a permit. The evidence also shows that no permit has been issued for the subject sign and that the owner of the sign has been duly notified that the sign must be removed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order

providing for the immediate removal of the subject sign.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989.

MICHAEL M. PARRISH

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 31st day of July 1989.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Mr. Mike S. Waters 15000 S.W. 192nd Avenue Miami, Florida 33187

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-002019

Orders for Case No: 89-002019