STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION. )

)

Petitioner, )

)

vs. ) CASE NO. 90-6261T

) HORSESHOE COVE RESORT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on April 16, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

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

Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450

For the Respondent: E. H. Williams

Manager

Horseshoe Cove Resort, Inc. 5100 69th Street East Bradenton, Florida 34203

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether the Respondent's sign, as described in the Notice of Hearing and in the violation issued herein, was in conformity with the Department requirements, as well as whether the Department is liable for damage to the sign caused by it's removal.

PRELIMINARY STATEMENT

On August 31, 1989, a representative of the Department of Transportation, (Department), issued a violation to the Respondent regarding the sign in question, and by letter dated July 17, 1990, the Department's District Administrator for Outdoor Advertising advised Respondent that the sign had been removed by the Department. On July 25, 1990, Mr. E. H. Williams, Respondent's manager, requested an administrative hearing on the violation, and by letter dated September 24, 1990, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated November 5, 1990, the undersigned set the case for hearing on February 5, 1991, but, consistent with Respondent's request for a continuance, on January 29, 1991, the undersigned postponed the February 5 hearing until April 16, 1991, at which time the matter was heard as scheduled.

At the hearing, Petitioner presented the testimony of Joseph V. Hanrahan, an inspector with the Department; and James Dunsford, the Department's Bartow District Administrator for Outdoor Advertising. Petitioner also introduced Petitioner's Exhibits 1 through 5. Respondent presented the testimony of E.H. Williams, its manager, and introduced Respondent's Exhibits A through C.

A transcript was provided and subsequent to the hearing, Counsel for the Petitioner submitted Proposed Findings of Fact which have been approved and are incorporated in this Recommended Order as appropriate. Respondent's manager submitted a letter reiterating the steps he had taken subsequent to the Notice of violation and his analysis of why Horseshoe Cove should not suffer injury.

His comments were considered in the preparation of this Recommended Ordet.

FINDINGS OF FACT

1. At all times pertinent to the matters in issue herein, the Petitioner, Department of Transportation, was the state agency responsible for regulating the erection and use of advertising signs adjacent to state right-of-way highways in this state. The Respondent, Horseshoe Cove Resort, Inc., was a commercial enterprise and the owner of the sign in question.

   
   

2. On August 31, 1989, in the course of his duties as an inspector in the Department's outdoor advertising division, Joseph V. Hanrahan saw the Respondent's sign, which was erected adjacent to and within 1,000 feet of another, permitted, sign, located approximately 25 feet west of 60th Street East, on the northbound side of State Road 70 in Manatee County, Florida.

   
   

3. State Road 70 is a primary highway, and the sign, a 1 x 3 foot electrified sign, located on a pole approximately 20 feet above the ground, was visible from the road. This sign was required to be permitted because it is an "off site" sign, ( a sign situated away from the advertised enterprise ). The sign appeared to be in violation of Section 479.07(1), Florida Statutes, and Mr. Hanrahan issued violation No. 1-13-30, which noted that the sign was not properly permitted, and which instructed the owner to remove it within 30 days of the date of the notice of violation.

   
   

4. The sign had been erected by Magee Sign Service which was paid by the Respondent to construct and erect it. A county permit had been issued for the sign, but no state sign permit had been obtained.

   
   

5. The notice of violation issued by Mr. Hanrahan was mailed to the Respondent and was received by it on September 5, 1989. The sign was not removed within 30 days. Therefore, on June 19, 1990, a contractor, working for the Department, cut the sign down, and by letter dated that same day, the Department advised Respondent the sign had been removed persuant to the violation. It also advised Respondent that under the provisions of Section 479.105, Florida Statutes, Horseshoe Cove was being charged $50.00 as the cost of removal.

   
   

6. After the sign was removed, Mr. Williams, Respondent's manager, called Mr. Dunsford, the Department's District Manager, regarding the removal, and in response to that call, Mr. Dunsford advised Mr. Williams in writing how to request a hearing. The violation notice sent to Respondent in August, 1989, states that the owner of the sign had 30 days to remove it. Even though the statute in effect at that time provided for the cost of removal to be borne by the owner, the form did not so state. In early 1990, the form was amended to

   include a notice regarding cost of removal. In this case, the only notice submitted to Respondent by the Department prior to the sign being removed was the violation notice.

   
   

7. According to Mr. Williams, shortly after he received the violation notice in August, 1989, in September, 1989 he wrote to the Department advising them he believed the sign was a part of the contiguous permitted sign. Along with that letter, Mr. Williams enclosed $50.00 to show a good faith effort to correct the problem. This $50.00 was subsequently returned by the Department. Upon the advice of Mr. Hanrahan, Williams contacted Magee Sign Service to see if a bracket could be fashioned to affix the offending sign to the adjacent billboard. Magee advised him that county regulations prohibited that. This is true. Williams then called Mr. Hanrahan to see if he would contact Mr. Prettyman, an official in the county planning office who permitted signs, to see if some arrangement could be made to preserve the sign, but in the interim, it was removed by the Department. All during this time, Mr. Williams was a member of the County Planning Commission and saw Prettyman at most meetings. He did not ever discuss the sign problem with him, however, claiming the meetings "offered little or no time for other business." A post - meeting discussion, or contacts at other times, were not addressed.

   
   

8. Hanrahan admits to being asked by Williams to speak with Prettyman and claims he did so. He also claims that Prettyman declined to issue the required permit. Hanrahan cannot recall whether he advised Williams of this or not, but it appears he did not. Williams claims he expected to hear back from Hanrahan on the matter, and now claims that had Hanrahan told him timely of Prettyman's refusal, he would have removed the sign then without destroying it. He also claims not to have known the state would hire a contractor to remove it or that there would be a cost involved. The cost is provided for by statute, however. His claims of lack of knowledge are not impressive and do not justify Respondent's inaction.

   
   

9. Notwithstanding that the contractor is required to remove the sign below ground surface, to fill the hole remaining, and to clean the area, according to Mr. Williams, the metal support pole was cut 1 1/2 inches above the ground and the internal electrical wires were cut at the junction box leaving live electrical wires open. When Mr. Williams saw the pole stub, he did not notify the Department but instead, had his own maintenance people correct the problem.

   
   

10. Even after the notice of violation, Respondent, though trying to arrange for the sign to be made "legal" at no time applied for a state permit for the offending sign. Williams claims that Magee did apply for a permit but was denied, but no independent evidence to that effect was presented.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

12. The provisions of Section 479.07, Florida Statutes, provide that:

    
    

    1. Except as provided [otherwise by law] a person may not erect, operate, use, or maintain or cause to be erected, operated, used, or maintained any sign on the State Highway System outside an incorporated area or 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 fees as provided in this section.

       
       

13. The evidence clearly indicates that the offending sign in question had not been permitted by the Department and was erected outside an incorporated area on a roadway within the State Highway System.

    
    

14. Section 479.105, Florida Statutes, provides:

    
    

    Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area,

    ... which sign was erected, operated or maintained without the permit required by [law] having been issued by the department, is

    decleared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

    
    

15. Subparagraphs (1)(a) - (c) of the above statute provide for the posting of violations and the dispatch of notice of the violation to the owner. No additional notice is required.

    
    

16. Section 479.105(3), Florida Statutes, authorizes the Department to assess a fee of $50.00 for removal of an unpermitted sign which is not removed by the owner within the 30 day period provided for removal. In the instant case, the evidence clearly demonstrates that Respondent was advised of the illegal nature of the sign and that it had to be removed. Instead of removing the sign in such a fashion as to preserve it, Respondent's manager attempted to take alternative action to have it legalized. The evidence is clear however, that his efforts were not extensive, and he cannot reasonably rely upon his request to Mr. Hanrahan, a Department representative, to speak with county officials for him.

    
    

17. Mr. Williams initially was advised by Mr. Hanrahan of what appeared to be the only possible way of legalizing the sign; to affix it to a permitted sign. Admittedly, the county officials refused to permit this, but it was incumbent upon Respondent to negotiate with the county, to keep abreast of others' efforts on his behalf, and to take appropriate action within the appropriate time frame to insure that his sign was properly removed if it could not be permitted. Respondent could not properly rely on the Department's representative to do his work for him.

    
    

18. Clearly, the sign was in violation of the statute, and clearly it was not removed by the owner within the appropriate timeframe as provided for by statute. Consequently, the Department's removal of the sign was appropriate, regardless whether the method of removal by the contractor met standards.

19. In any case, Respondent is not entitled to reimbursement for the cost of the sign since it was it's own failure to act responsibly which cause the sign's desruction in the first place.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered approving the removal of the offending sign in question, assessing a $50.00 fee against Respondent for removal costs, and denying Respondent reimbursement for the cost of the destroyed sign.

RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

COPIES FURNISHED:

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1991.

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

E. H. Williams

Horseshoe Cove Resort, Inc. 5100 69th Street East Bradenton, Florida 34203

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0468

Thornton J. Williams General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 90-006261

Orders for Case No: 90-006261