STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2697T

)

THOMAS' PROMISES FARMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above style case was held on July 13, 1989, in Miami, Florida before Jane C. Hayman, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Rosa Thomas

Thomas' Promises Farms 18990 S.W. 152nd Street Miami, Florida 33187

STATEMENT OF THE ISSUES

Whether Respondent's sign violates Florida Law as alleged in the Administrative Complaint and, if so, what further action is required.

PRELIMINARY STATEMENT

By certified mail dated March 21, 1989, Petitioner notified Respondent that Respondent's sign was in violation of Sections 479.07(1) and 479.11(1), Florida Statutes, for failure to have an appropriate permit and for being placed on property which carried an ineligible zoning classification. By letter filed with Petitioner on April 17, 1989, Respondent requested an administrative hearing on the matter, and by letter dated May 11, 1989, Petitioner requested that the Division of Administrative Hearing appoint a hearing officer to conduct a formal administrative hearing pursuant to Chapter 120, Florida Statutes.

At the formal hearing, Petitioner presented testimony of one witness and had marked for identification two exhibits which were admitted into evidence. Respondent testified on her own behalf and called one witness, one of whom was a minor child who was qualified to testify. Respondent had marked for identification one exhibit which was admitted into evidence.

A transcript of the proceeding was ordered, and proposed findings of fact and conclusions of law were due on July 31, 1989. Petitioner submitted proposed findings of fact, but Respondent did not. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was the owner of an unpermitted sign erected within 25 feet of the intersection of Krome Avenue and State Road 997 in Dade County, Florida. State Road 997 is within the State Highway System and is a federally aided primary highway and the property on which the sign is located is zoned "GU Intrem," an agricultural zoning classification of Dade County, Florida.

   
   

2. On March 21, 1989, the sign in question was posted with a violation sticker indicating that the sign was subject to removal by the Department after thirty days from the date of the posted notice. Also, a written violation notice dated March 21, 1989, was sent to Respondent. Prior to the hearing, the face of the sign was removed by Respondent and the structure supporting the sign was taken down by Petitioner. Respondent admitted that she did not have a permit for the sign and that one was required.

   
   

3. The sign at issue did not qualify for a sign permit nor for any exemption from the requirement therefor. Further, the property on which the sign was located was in an ineligible zoning classification. The removal of Respondent's sign was appropriate.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

5. 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 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.

   
   

6. Section 479.105(1)(a)-(c), Florida Statutes, provides in part:

   
   

   1. 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.

      1. Upon a determination by the department 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 sign 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.

      2. 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.

      3. For purposes of this subsection, a notice to the sign owner, when required, constitutes sufficient notice; . . . .

         
         

7. 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 "

   
   

8. Respondent contended that the sign should not have been removed until after her failure to SHOW CAUSE at the formal hearing as to why the sign should not be removed. For her argument, Respondent relied on the following wording of the written notice of violation:

   
   

   You must comply with the applicable provisions of the said Statute(s) and Code(s) within thirty (30) days from the date of the posted notice, and written notice of compliance must be furnished

   to: . . .

   or, in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice. The submitted hearing request shall give a brief statement setting forth the reason(s) for review. At the Administrative Hearing, you will be required to SHOW CAUSE why the sign should not be removed, or the above described violation(s) shall be considered to be true. Such hearing request must be furnished to . . .

   In either case, if you fail to comply within the thirty (30) day period above, then the described violation(s) shall be considered true and the Department of Transportation reserves the right to take such action as the law permits including, but not limited to the removal of the sign without further notice. (Emphasis added.)

   
   

   State of Florida Department of Transportation Alleged Violation of the Florida Statutes and Florida Administrative Code and Notice to Show Cause, Notice No. 6- DG-68 (March 21, 1989). While it is clear from the language of the posted notice and the provisions of the Florida Statutes cited on the written notice that the sign may be removed within 30 days from the date of the posted notice, the above quoted wording is misleading and contrary to the intent of the controlling law.

   
   

9. Further, Respondent contended that her sign should not be removed because it was used as a street marker for her. The proof demonstrated that the intersection at which the sign was located was difficult to spot and was hazardous. However, Petitioner does not have jurisdiction over street markers at the subject location. While the intersection is not clearly marked, the issue is more appropriately addressed in another forum. Cf. Section 479.16(15), Florida Statutes.

   
   

10. The proof demonstrated that the subject sign was located in a prohibited area and is, therefore, ineligible for a permit. The evidence also shows that no permit was issued for the subject sign and the owner of the sign was 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 that the subject sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that the removal of the subject sign was proper.

DONE and ENTERED this 7th day of August, 1989, in Tallahassee, Florida.

JANE C. HAYMAN

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 7th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-2697T

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed, in part, in paragraph 1.

2. Addressed in paragraph 2; in part, subordinate to the result reached.

3. Addressed in conclusions of law.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Rosa Thomas

Thomas' Promises Farms 18990 S.W. 152nd Street Miami, Florida 33187

Mr. Kaye N. Henderson Secretary

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III Genera1 Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-002697

Orders for Case No: 89-002697