STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4199T

) ARTDEV GRAPHICS CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on October 16, 1989, in Deland, Florida.

APPEARANCES

For Petitioner: Charles F. Gardner, Esquire

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Robert S. Lee, President

Artdev Graphics Corporation Qualified Representative

409 North Spring Garden Avenue Deland, Florida 32720

STATEMENT OF THE ISSUES

Whether Respondent's sign located adjacent to the south right-of-way line of Plymouth Avenue, 315 feet east of the centerline of State Road 15A in Deland, Volusia County, Florida, is in violation as alleged in Petitioner's Notice To Show Cause No. 5-79-014-89 dated June 13, 1989.

PRELIMINARY STATEMENT

On July 7, 1989, the Petitioner, Florida Department of Transportation (Department) issued a Notice to Show Cause, No. 5- 79-017-89, citing Respondent with a violation of Section 479.07(1), Florida Statutes, for having a sign located on Highway 11, .108 miles north of SR 17-92, in Volusia County, Florida that did not have a state sign permit as required by law.

By letter dated July 13, 1989, Respondent, among other things, requested a hearing on Notice to Show Cause, No. 5-79- 017-89. The Department referred the matter to the Division of Administrative Hearings for conduct of a hearing.

Subsequent to the hearing being scheduled, the Respondent advised the Hearing Officer that the initial request for hearing was incorrect and requested a hearing on the Department's Notice To Show Cause, No. 5-79-014-89, dated June

13, 1989, regarding Respondent's sign located adjacent to the south right-of-way line of Plymouth Avenue, Deland Florida, 315 feet east of the centerline of SR 15A, which allegedly was in violation of the law by not having a state sign permit, violating spacing rule and being in an unpermittable zone.

The Department consented to the Respondent's request and the matter proceeded to hearing on Department's Notice To Show Cause, No. 5-79-014-89, dated June 13, 1989.

In support of its allegation in the Notice To Show Cause, No. 5-79-014-89, the Department presented the testimony of Peter W. Wright. Respondent's exhibits 1, 2 and 3 were received into evidence. Robert S. Lee, President of Artdev Graphics Corporation and representing the corporation as its Qualified Representative testified for the Respondent. No documentary evidence was offered by the Respondent.

A transcript of the hearing was filed with the Division of Administrative Hearings on November 3, 1989. The Department filed an unopposed Motion For Extension Of Time requesting additional time for filing its proposed findings of fact and conclusions of law. The motion was granted and the requirements of Rule 28-5.402, Florida Administrative Code were waived. Petitioner timely filed its proposed findings of fact and conclusions of law in accordance with the order extending time. Respondent has elected not to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent, Artdev Graphics Corporation, was the owner of a sign located near the intersection of Plymouth Avenue and SR 15A adjacent to the south right-of-way line of Plymouth Avenue,

   315 feet east of the centerline of SR 15A, in Deland, Volusia County, Florida which is the subject matter of this proceeding.

   
   

2. Respondent also owns a legally permitted sign adjacent to SR 15A which is 270 feet south of the sign referred to in paragraph 1 above when measured along the east right of way line of SR 15A.

   
   

3. SR 15A is designated as a federal-aid primary highway.

   
   

4. Plymouth Avenue is neither a federal-aid primary highway nor an interstate highway.

   
   

5. The sign referred to in paragraph 1 above is visible from the "main- traveled way" of SR 15A as that term is defined in Section 479.01(8), Florida Statutes, respectively.

   
   

6. There was insufficient evidence to show that the Department advised the Respondent, at any time, that a state outdoor advertising permit was not needed for the sign in question.

   
   

7. The sign in question does not have a state outdoor advertising permit attached thereto nor has a state outdoor advertising permit been issued to Respondent for the sign in question.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

9. The sign in question comes within the definition of the term "sign" as that term is defined in Section 479.01(14), Florida Statutes, and could not be permitted within 660 feet of the east right-of-way line of SR 15A unless the sign meets the spacing requirements of Rule 14-10.06(1)(b)3., Florida Administrative Code, requiring a space of no less than 500 feet between signs on the same side of the highway facing the same direction or is exempted from the permit requirement under Section 479.16, Florida Statutes. The sign in question is not exempted from the permit requirement and, therefore, since the sign in question is less than 500 feet from Respondent's permitted sign on the same side of SR 15A it can not be permitted.

   
   

10. As the party asserting the an affirmative issue before an administrative tribunal, the burden of proof is on Petitioner to prove the truth of the allegations. Florida Department of Transp. v. J. W. C. Company Inc., 396 So.2d 778 (1 DCA Fla. 1981). Petitioner has sustained its burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED that the Florida Department of Transportation (Department) enter a final order requiring the Petitioner, Artdev Graphics Corporation, to remove the sign in question under the terms and conditions the Department deems appropriate and in accordance with law.

DONE AND ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989.

APPENDIX TO THE RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

1.-2. Adopted in Finding of Fact 1, as modified.

3.-8. Adopted in Findings of Fact 3, 4, 1, 2, 5, and 7, respectively.

9. Rejected as not supported by substantial competent evidence in the record.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

The Respondent elected not to submit any proposed findings of fact.

COPIES FURNISHED:

BEN WATTS, P. E., SECRETARY HAYDON BURNS BUILDING

605 SUWANNEE STREET

TALLAHASSEE, FLORIDA 32399-0450 ATTN: ELEANOR F. TURNER, M.S. 58

CHARLES G. GARDNER, ESQUIRE HAYDON BURNS BUILDING

605 SUWANNEE STREET, M.S. 58

TALLAHASSEE, FLORIDA 32399-0458

ROBERT S. LEE, PRESIDENT ARTDEV GRAPHICS CORPORATION

409 NORTH SPRING GARDEN AVENUE DELAND, FLORIDA 32720

Docket for Case No: 89-004199

Orders for Case No: 89-004199