STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 90-1725T

) 90-1726T

SAINT JOHN NEUMANN CATHOLIC ) 90-1727T

CHURCH, ) 90-1728T

) 90-1729T

Respondent. ) 90-1730T

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these cases on July 12, 1990, in Miami, Florida , before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue in each of these cases is whether Respondent's sign is violative of Section 479.11, Florida Statutes (1989) as alleged in the Notices To Show Cause issued in connection with each of the signs on February 20, 1990.

PRELIMINARY STATEMENT

These consolidated cases involve six separate signs which are owned and maintained by the Respondent. On or about February 20, 1990, representatives of the Florida Department of Transportation ("DOT") placed a notice on each of the signs indicating that the signs were illegally placed within the right-of-way.

A Notice of Illegal Signs on Right-a-Way was provided to Respondent with respect to each of the signs by certified mail. By letter dated February 28, 1990, Respondent contested the allegations and the cases were referred to the Division of Administrative Hearings to conduct a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. A separate case was opened with respect to each of the signs in question. The cases were consolidated pursuant to an Order of Consolidation entered by Hearing Officer Linda M. Rigot on April 12, 1990. The signs were each located in a separate location and evidence was presented at the hearing with respect to each of the signs in question.

By Notice of Hearing dated April 12, 1990, the consolidated cases were scheduled for hearing on July 12, 1990 in Miami, Florida. Prior to the hearing, the cases were transferred to the undersigned Hearing Officer who assumed the responsibility to conduct the hearing. As set forth in an Order entered on July 31, 1990, the undersigned Hearing Officer appeared at the time and place scheduled for the hearing. Counsel for the Petitioner was also present.

However, no appearance was made on behalf of the Respondent. Efforts to contact counsel for Respondent on the day of the hearing were unsuccessful. After waiting for approximately forty minutes, the hearing commenced and Petitioner presented its evidence.

At the hearing, Petitioner presented the testimony of two witnesses: Donald Gay who is employed by DOT and whose duties include inspecting outdoor advertising and Jens Henriksen, a land surveyor for DOT who was accepted as an expert in the area of land surveying. Petitioner offered seven exhibits into

evidence, all of which were accepted. At the conclusion of the hearing, counsel for Petitioner indicated that he did not intend to order a transcript of the proceeding. Counsel for Petitioner also indicated that he did not intend to file any post-hearing submittals. Petitioner was advised that any proposed findings of fact and conclusions of law were to be filed within ten days of the date of the hearing.

Subsequent to the hearing, the Hearing Officer was contacted by counsel for the Respondent who advised that he had never received a notice of the hearing.

On July 23, 1990, counsel for the Respondent filed Respondent's Request for Reconsideration in Light of the Failure of the Department To Furnish Proper Notice of the Hearing Date to Respondent's Counsel. As set forth in the Order entered on July 31, 1990, the record in this proceeding was left open in order to allow Respondent an opportunity to presents its case. The parties were instructed to confer in order to discuss the need for a further evidentiary hearing and a telephone conference call was scheduled for August 31, 1990 to discuss the status of the case. Prior to the commencement of that conference call, counsel for the Respondent contacted the undersigned Hearing Officer and advised that the Respondent did not intend to offer any further evidence in this case and would rely on the record as previously developed. Therefore, the conference call was cancelled.

No post-hearing submittals have been received from either party.

FINDINGS OF FACT

1. Respondent, Saint John Neumann Catholic Church, is located 12125 S.W. 107th Avenue in Miami, Florida.

   
   

2. Each of the six signs in question is a directional sign for the church and they were all erected along the right-of-way for State Road 990.

   
   

3. All of the signs were located within the right-of-way for State Road

   990.

   
   

4. All of the signs have now been removed.

   CONCLUSIONS OF LAW

   
   

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

   
   

6. DOT is statutorily empowered to administer and enforce the provisions of Chapter 479, Florida Statutes. Section 479.02, Florida Statutes (1989).

   
   

7. Section 479.11, Florida Statutes, provides in pertinent part as follows:

   
   

   Specified signs prohibited. - No sign shall be erected, used, operated, or maintained:

   
   

   * * *

   
   

   (8) which is located upon the right-of-way of any highway on the State Highway System...

   
   

8. Each of the signs involved in these cases was located on the right-of- way of State Road 990. Therefore, all of the signs were prohibited under Section 479.11.

   
   

9. In the February 28, 1990 letter requesting a hearing on these cases, Respondent argued that, pursuant to Section 479.16(12), Florida Statutes, it was not required to obtain a permit for a sign within 660 feet of the right-of-way of the federal-aided primary highway system. However, that statutory provision is irrelevant. DOT has determined that the signs in question are illegal because they are actually located within the right-of-way not because they are lacking a permit. The statutory provision relied upon by Respondent does not allow Respondent to erect signs within the right-of-way. Under Section 479.11(1) no signs can be erected within the right-of-way.

RECOMMENDATION

Based upon the foregoing finding of facts and conclusions of law, it is recommended that the Department of Transportation issue a Final Order requiring that the signs in Case Numbers 90-1725T, 90-1726T, 90-1727T, 90-1728T, 90-1729T and 90-1730T be removed.

RECOMMENDED in Tallahassee, Leon County, Florida, this 7th day of September, 1990.

J. STEPHEN MENTON 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 September, 1990.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Alfredo Garcia, Esquire Saint Thomas University School of Law

16400 Northwest 32nd Avenue Miami, Florida 33054

Charles G. Gardner Senior Attorney

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

Tallahassee, Florida 32399-0458

Robert Scanlan General Counsel

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Docket for Case No: 90-001725

Orders for Case No: 90-001725