STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4799T

)

LAURA UWANAWICH, )

d/b/a Mrs. Clair, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 12, 1991, in Haines City, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: (no appearance)

For Respondent: Jay O. Barber, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether a sign owned by Respondent and located on the northbound side of

1. 27, at 853 U.S. 27 South, Lake Placid, Florida, is located in the road right-of-way, and must be removed.

   
   

   PRELIMINARY STATEMENT

   
   

   On April 22, 1991, Respondent was served with a Notice of Violation, which alleged that Respondent had placed a sign in the road right-of-way, and must be removed. Respondent denied the violation and requested an formal hearing pursuant to Chapter 120. This matter was referred to the Division of Administrative Hearings for formal hearing on July 26, 1991. Following the parties response to the Initial Order, this matter was set for hearing on November 12, 1991, by Order dated September 3, 1991.

   
   

   During this time period, Petitioner initiated discovery to which Respondent did not respond, including Petitioner's First Request for Admissions. On the day of, but prior to the hearing, the Hearing Officer was informed that Respondent had telephonically requested a continuance of the hearing to which the Petitioner objected. A telephone conference call was initiated by the Hearing Officer to Respondent's location, in which Petitioner and Respondent

   participated. After conducting a hearing on Respondent's ore tenus Motion for Continuance, it was determined that Respondent had not demonstrated good cause, and the motion for continuance was denied. The formal hearing on the merits then proceeded at the scheduled time, and Respondent did not appear.

   
   

   At the hearing, Petitioner presented the testimony of two witnesses, and offered five exhibits in evidence. No evidence was presented on behalf of Respondent. The hearing was recorded by a reporter, but has not been transcribed. Neither party submitted proposed findings of fact or conclusions of law.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system.

      
      

   2. U.S. 27 in Highlands County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State.

      
      

   3. Respondent is the owner, and maintains a two sided sign structure (sign) located at 853 U.S. Highway 27 South, Lake Placid, Florida, in Highlands County, which has been erected in the DOT right of way of U.S. Highway 27, inventory section 44, approximately 300 feet South on the North bound side of the highway. The sign is approximately 8 foot by 8 foot made of wood with wooden poles, and contains the advertising copy: "Mrs. CLAIR Psychic...Tarot...Palms...(Se habla espanol)", followed by a telephone number.

      
      

   4. On March 22, 1991, Respondent was served with a Notice of Violation from the DOT concerning said sign, and was advised that said sign was erected in violation of Florida law, and must be removed within ten working days of the notice.

      
      

   5. Said sign is presently standing in the DOT right-of-way, as of the date of the formal hearing.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   7. The Department of Transportation is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the Interstate and Federal Aid Primary Systems, and along the State Highway System.

      
      

   8. Section 479.11, Florida Statutes (1989) provides in pertinent part:

      
      

      479.11 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, interstate highway system, or federal-aid primary highway system.

      
      

   9. The evidence is clear that Respondent has erected and maintained a sign upon the DOT right-of-way in Highlands County. A permit for such a sign is statutorily prohibited. Therefore, Respondent must remove the sign within the time provided by the Department, or the DOT can remove it and seek the imposition of an administrative fine, pursuant to the provision of Section 479.107, Florida Statutes (1989).

      
      

   10. Of course, the Respondent is not prohibited from applying for a permit to erect a sign that conforms to the law and is located outside the DOT right of way. See: Section 479.17, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's request for an exemption from the provisions

of Section 479.11(8), Florida Statutes, be DENIED and that Respondent be ordered to remove said sign from the DOT right of way, in accordance with the provisions of Section 479.107, Florida Statutes.

DONE AND ENTERED this 23rd day of December, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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

23rd day of December, 1991.

Copies furnished:

Jay O. Barber, Esq. Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Laura Uwanawich Mrs. Clair

853 U.S. 27 South

Lake Placid, FL 33852

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the 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 that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-004799

Orders for Case No: 91-004799