STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6716T

)

BAY COLONY PROPERTY OWNERS )

ASSOCIATION, )

)

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 25, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Rivers Buford, Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: John Stein

5007 Beacon Road

Palmetto, Florida 34221 STATEMENT OF THE ISSUES

Whether Respondent's sign along the southside of U.S. 19, 6 feet north of 50th Street S.W. is illegal or permittible.

PRELIMINARY STATEMENT

This case was initially scheduled to be heard on February 22, 1990. The date, time and location of the hearing was changed several times before being rescheduled to be heard on March 25, 1990. At this March 25, 1990 hearing the Respondent was not present or represented. Petitioner was allowed to present its case. Subsequently, it was learned that Respondent had appeared at the specified time for the hearing at the location formerly noticed for the hearing and contended the latest change had not been received. As a result of this representation, the hearing was rescheduled to be heard April 25, 1990.

At the final hearing, Petitioner called one witness, Respondent called two witnesses and three exhibits were admitted into evidence. The facts are not in dispute, and the parties waive the right to submit proposed recommended orders.

FINDINGS OF FACT

1. Bay Colony Property Owner's Association, Respondent, is the owner of a sign along the south side of U.S. 19, 6 feet north of 50th Street S.W. in Palmetto, Florida; and the Department of Transportation, (DOT), Petitioner, is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs.

   
   

2. The sign in question is an outdoor advertising sign as that term is defined in Florida Statutes. U.S. 19 is a federal aid primary highway.

   
   

3. This sign is secured to the same pole used to advertise Palmetto Point. Neither of these signs has been permitted.

   
   

4. Two permitted signs owned by Patrick Media are located less than 1000 feet apart, one north and one south of Respondent's sign, on the same side of

   U.S. 19 and facing the same direction as Respondent's sign. As a result of these existing signs, Respondent's sign is not permittible.

   
   

5. The sign is located in the southeast corner of lot DP No. 22050 (Exhibit 2) on property zoned commercial. Neither Respondent nor Palmetto Point owns or has a lease for the property on which the signs are located, but this is not an issue in these proceedings.

   
   

6. Respondent's sign has been in this location for some 20 years before the notice of violation leading to these proceedings was issued.

   
   

7. Neither Respondent's sign nor Palmetto Point's sign is located so as to be exempt from permitting [Section 479.16(1)] as an on-premise sign.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 479.07(1), Florida Statutes (1989), provides no sign shall be erected on any portion of the interstate or federal aid primary highway system without first obtaining a permit from DOT.

   
   

9. At the time Respondent's sign was initially erected, it may have been deemed by the DOT sign inspector covering this area to be an on-premise sign. If so, it did not require a permit [Section 479.16(1)].

   
   

10. There is reason to believe that the property on which the Palmetto Point board is erected was originally owned by the developer of Palmetto Point and at one time the Palmetto Point board was a legal on-premise sign which was exempt from permitting requirements by Section 479.16(1), Florida Statutes, (1989).

    
    

11. However, the sign post is not on the premises of either Bay Colony or Palmetto Point and is not adjacent to either development; therefore, it cannot qualify as an on-premise sign for either.

    
    

12. Respondent's argument, that some sort of prescriptive right has accrued to it by reason of the extended period the existence of the sign has not been challenged by DOT, is without merit. Such a prescriptive right to freedom from state regulation does not exist.

13. Section 479.07, Florida Statutes, provides that a permit may not be issued for a sign along a federal aid primary highway within 1000 feet of an existing sign on the same side of the highway. Since there are other permitted signs within 1000 feet of Respondent's sign on the same side of the highway as Respondent's sign, Respondent's sign is not permittable.

    
    

14. From the foregoing, it is concluded that Respondent's sign is an illegal unpermitted sign and cannot meet the statutory spacing requirements to be permitted.

RECOMMENDATION

It is accordingly recommended that a Final Order be entered directing Respondent to remove its sign in compliance with Section 479.105(1), Florida Statutes.

DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990.

COPIES FURNISHED:

Rivers Buford, Esquire Department of Transportation 605 Suwanee Street, MS 58

Tallahassee, FL 32399-0458

John Stein

Bay Colony Property Owners Association 5007 Beacon Road

Palmetto, FL 34221

Frank J. Seiz

4811 Palmetto Point Road Palmetto, FL 34221-9721

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, FL 32399-0458

Robert Scanlon, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Docket for Case No: 89-006716

Orders for Case No: 89-006716