STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8111T

)

DAN SHOOK, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 28, 1991, a formal administrative hearing was held in this case in Lakeland, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon L. Whittier, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

For Respondent: Dan Shook

6002 Scenic Highway

Dundee, Florida 33838 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Department of Transportation (the DOT), should sustain its Notice of Violation 1-16-100 issued on November 9, 1990, seeking removal of an outdoor advertising sign owned by the Respondent, Dan Shook.

PRELIMINARY STATEMENT

Notice of Violation 1-16-100 alleges that the Respondent's sign, located

1. of a mile north of Race Road on the northbound side of Alternate U.S. Highway 27 in Polk County, Florida, is in violation of Section 479.07(1), Fla. Stat. (1989), for not being properly permitted. It also alleges that the sign must be removed.

   
   

   At the final hearing, a DOT property and outdoor advertising inspector testified, and Petitioner's Exhibits 1 through 6 were admitted in evidence. The Respondent testified in his own behalf.

   The DOT ordered the preparation of a transcript of the final hearing. The transcript was filed on March 18, 1991.

   The Respondent did not file a proposed recommended order. The proposed findings of fact contained in the DOT's proposed recommended order are accepted and incorporated.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Dan Shook, owns residential property within the city limits of Dundee, Florida, and now also owns contiguous property that is adjacent to the right-of-way of on the northbound side of Alternate U.S. Highway

      27 in Polk County, Florida, a federal aid primary highway.

      
      

   2. In prior years, the Respondent's land did not include the contiguous property adjacent to Alternate 27. In those prior years, for 17 consecutive years, the prior owner of the contiguous land maintained on the property an outdoor sign advertising Sunken Gardens in St. Petersburg, Florida, facing the northbound traffic on Alternate 27. When legislation was enacted to regulate outdoor advertising along Florida highways, the Sunken Gardens sign was "grandfathered" as a nonconforming use.

      
      

   3. Over the years, the Sunken Gardens sign fell into disrepair and, apparently in the summer of 1990, the owner of the sign decided to sell the property and abandon its permit for the location. The Respondent bought the property where the old sign was located.

      
      

   4. The Respondent was living with his wife in one of the mobile homes they owned on his property. When the Respondent bought the property where the sign was located, he planned to put an additional mobile home on the property. He asked the prior owner to remove the old Sunken Gardens sign.

      
      

   5. According to the Respondent, about four months passed, and the sign was not removed. On September 26, 1990, the Respondent contacted Sunken Gardens advertising and asked for permission to remove the sign himself, which permission was granted. The Respondent also agreed to physically remove the permit tag from the old sign and return it to Sunken Gardens so that Sunken Gardens could return the permit to the DOT, together with the required affidavit to effect the cancellation and termination of the permit. The Respondent asked for and got a letter of confirmation which stated in part that "Sunken Gardens hereby grants you all rights and ownership to remove, destroy and dispose of" the sign. Neither party intended that the Respondent was being given the right to do anything but to remove the sign from the property so that the Respondent could go forward with his plans to put a mobile home on the property.

      
      

   6. The Respondent returned the permit tag to Sunken Gardens, as agreed. But before removing the sign, the Respondent changed his mind. He had long been in the business of selling and installing mobile home supplies, accessories and certain home improvements. He operated the business out of his home on the property. But, in order to increase his business and give his wife an additional source of income, he decided to open a mobile home supplies store in downtown Dundee, about a mile away. He decided to, and did, use the serviceable parts of the old Sunken Gardens sign and rebuild and repaint the sign to advertise: "Dan Shook MOBILE HOME SUPPLIES WINDOWS - DOORS - SHUTTERS - SIDING

      - CARPORTS - FLORIDA ROOMS - SCREEN ROOMS - 1 MI. AHEAD DOWNTOWN DUNDEE."

   7. Meanwhile, on or about October 17, 1990, Sunken Gardens submitted to the DOT an affidavit on an official DOT form representing that the tag permit for the old Sunken Gardens sign was being returned to the DOT and that the sign was being removed due to the property changing hands.

      
      

   8. After receipt of the Sunken Gardens affidavit, the DOT inspected the site to be sure that the sign had been removed, as represented, and found the Respondent's new sign in its place.

      
      

      CONCLUSIONS OF LAW

      
      

   9. Section 479.07, Fla. Stat. (1989), requires that signs on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system must be permitted by the DOT.

      
      

   10. Section 479.105(1), Fla. Stat. (1989), declares that any unpermitted 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, is a public nuisance and a private nuisance and provides that the sign shall be removed as provided in Section 479.105.

       
       

   11. Section 479.16(8), Fla. Stat. (1989), exempts from the permit requirements: "Signs or notices erected or maintained upon property stating only the name of the owner, lessee, or occupant of the premises an not exceeding

       8 square feet in area."

       
       

   12. Section 479.07(1), Fla. Stat. (1989), allows the transfer of a sign permits from one person to another upon written acknowledgment from the transferor and payment of a fee.

       
       

   13. The Respondent's sign requires a permit. It is not exempt from the permit requirement under Section 479.16(8), or under any other exemption. The Sunken Gardens sign was not legally transferred to the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order sustaining Notice of Violation 1-16-100 and requiring that the Respondent's sign be removed.

RECOMMENDED this 16th day of April, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 16th day of April, 1991.

COPIES FURNISHED:

Vernon L. Whittier, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Dan Shook

6002 Scenic Highway

Dundee, Florida 33838

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF TRANSPORTATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF TRANSPORTATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-008111

Orders for Case No: 90-008111