STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4804T

)

FRED OVERMYER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on November 5, 1991, in Sarasota, Florida.

APPEARANCES

For Petitioner: Jay O. Barber, Esquire

Department of Transportation 605 Suwanee Street, M.S. 58

Tallahassee, Florida 32301

For Respondent: Fred Overmyer, pro se

245 Sovrano Road Venice, Florida 34285

STATEMENT OF THE ISSUE

Whether the signs referred to in Violation Notice Number 1-17-104 and 1-17-

105 dated February 5, 1991 are exempt from the permitting requirements of Chapter 479, Florida Statutes.

PRELIMINARY STATEMENT

On February 5, 1991 the Petitioner, Department of Transportation (Department) issued Notice Violation Numbers 1-17-104 and 1-17-105 to the Respondent, Fred Overmyer advising him that the unpermitted outdoor advertising signs which advertised Respondent's apartments for rent located between Magnolia Avenue and Palmetto Road on U.S. Highway 41 in Sarasota County, Florida were in violation of Section 479.07(1), Florida Statutes, for not being properly permitted and unless removed within 30 days the signs would be removed by the Department and the costs of removal assessed against the Respondent.

By letter dated February 11, 1991 the Respondent advised the Department that the signs were not off premises signs and were not subject to the permitting requirements of Chapter 479, Florida Statutes, and if the matter could not be informally resolved that he was requesting a hearing pursuant to Chapter 120, Florida Statutes.

By letter dated July 26, 1991 the Department transferred the matter to the Division of Administrative Hearings to conduct a hearing. The Department filed its response to the Initial Order, but there was no response by the Respondent. The hearing was scheduled and heard on November 5, 1991.

At the hearing, the Department presented the testimony of Joseph V. Hanrahan and James Dunsford. The Department's exhibits 1 through 3 were admitted as evidence. The Respondent testified in his own behalf. Respondent's exhibit 1 was admitted as evidence. The Respondent failed to timely file certain documents that were to be considered as late filed exhibits.

A transcript of this proceeding was filed with the Division of Administrative Hearings on December 2, 1991 but because the Respondent was given until December 2, 1991 to late file certain exhibits, the filing of the parties' proposed findings of fact and conclusions of law were extended until December 20, 1991 with the Recommended Order due January 20, 1992. The Department timely filed its proposed findings of fact and conclusions of law. The Respondent has not filed any proposed findings of fact or conclusions of law. A ruling on each of the proposed findings of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to these proceedings, the Respondent owned Lots 2 and 6 of Block H, Corrected Plat of Bay Point located in an unincorporated area of Sarasota County, Florida. Lots 2 and 6 are immediately east of, and adjacent to, Lots 1 and 7 of Block H, Corrected Plat of Bay Point. Lots 2 and 6 are also located north of Magnolia Avenue and South of Palmetto Road. Lots 1 and 7 are located immediately east of, and adjacent to, U.S. Highway 41 and north of Magnolia Avenue and south of Palmetto Road.

   
   

2. Respondent owns and maintains apartments on Lots 2 and 6 which he offers for rent.

   
   

3. At all times material to these proceedings, Respondent owned and maintained two "Apartment for Rent" signs which were located on Lots 1 and 7. These signs advertised that the Respondent's apartments located on Lots 2 and 6 were for rent.

   
   

4. Respondent has never owned or held an interest in Lots 1 and 7, and there was no evidence that Respondent retained a property right in Lots 1 and 7 to maintain the "Apartment for Rent" signs on the premises of Lots 1 and 7.

   
   

5. Presently there is a small shopping mall located on Lots 1 and 7. The Respondent does not own or have any interest in this shopping mall, or have any type of establishment located on the premises of Lots 1 and 7.

   
   

6. The signs in question advertise the Respondent's apartments located on Lots 2 and 6 exclusively, and do not advertise any product which can be obtained in the mall.

   
   

7. The signs in question are not permitted by the Department and the Respondent has not applied to the Department for a permit.

8. The signs in question come within the definition of sign as defined in Section 479.01(14), Florida Statutes, and are visible signs as the term "visible sign" is defined in Section 479.01(23), Florida Statutes.

   
   

9. The signs in question were not located on the Respondent's premises as the term premises is defined in Section 479.01(13), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 479.02, Florida Statutes, among other things, empowers the Department to administer and enforce the provisions of Chapter 479, Florida Statutes.

    
    

12. Section 479.07(1), Florida Statutes, provides as follows:

    
    

    1. Except as provided in s. 479.16, 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 fee as provided in this section.

       
       

13. Section 479.16(1), Florida Statutes in pertinent part provides as follows:

    
    

    The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter but are required to comply with the provisions of s. 479.11(4)-(8):

    1. Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment . . . .

       
       

14. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribune. Florida Department of Transportation v.

1. Company, Inc., 396 So.2d 778 (2 DCA Fla. 1981). To meet this burden the party must establish facts upon which its allegations are based by a preponderance of the evidence. The Department has met this burden by establishing facts to show that the signs in question are not permitted by the Department and are not exempt under Section 479.16(1), Florida Statutes.

   RECOMMENDATION

   
   

   Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,

   
   

   RECOMMENDED:

   
   

   That the Department enter a Final Order finding that the Notice Violation Numbers 1-17-104 and 1-17-105 were properly issued and that the Respondent shall have thirty days from the date of the Final Order to comply with the requirement of Notice Violation Numbers 1-17-104 and 1-17-105 by removing the signs or be subject to the cost of removal by the Department.

   
   

   DONE and ENTERED this 3rd day of January, 1992, in Tallahassee, Florida.

   
   

   
   

   WILLIAM R. CAVE

   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 3rd day of January, 1992.

   
   

   APPENDIX TO RECOMMENDED ORDER

   
   

   The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Department in this case.

   
   

   1. Adopted in substance as modified in Findings of Fact 1, 2, and 3.

      
      

   2. - 4. Adopted in substance as modified in Findings of Fact 7, 4 and 5, respectively.

The Respondent did not submit any proposed findings of fact.

COPIES FURNISHED:

Jay O. Barber, Esquire Department of Transportation 605 Suwanee Street, M.S. 58

Tallahassee, FL 32301

Fred Overmyer, pro se

245 Sovrano Road Venice, FL 34285

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

ATTN: Eleanor F. Turner, M.S. 58 605 Suwanee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, FL 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 CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NO. 91-4804T

DOT CASE NO. 91-0118

FRED OVERMYER,

Respondent.

/

FINAL ORDER

The Department of Transportation, Petitioner, sent notices of violation to Fred Overmyer, Respondent, for two unpermitted signs located as follows: one 25 feet north of Magnolia Avenue on the northbound side of U.S. 41, and one 25 feet south of Palmetto Road on the northbound side of U.S. 41 in Sarasota County, Florida. Respondent requested a hearing, and the matter was referred to the Division of Administrative Hearings.

A hearing was held in this matter on November 5,1991. The Hearing Officer entered a Recommended Order, copy attached, on January 3, 1992. No exceptions

to the Recommended Order were filed by either party. The Hearing Officer's Recommended Order is adopted, and it is

ORDERED that the outdoor advertising signs of Respondent, located along the northbound side of U.S. 41 in Sarasota County, Florida, are ILLEGAL signs and shall be removed within thirty (30) days of the date of this order. In the event Respondent falls to remove the signs within the time set out herein, the Department shall remove the signs and the cost of the removal is assessed against Respondent pursuant to this Final Order.

DONE AND ORDERED this 6th day of March, 1992.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY

(30) DAYS OF RENDITION OF THIS ORDER.

COPIES FURNISHED:

William R. Cave Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Fred Overmyer, pro se

245 Sovrano Road Venice, Florida 34285

Carolyn S. Holifield, Esquire Jay O. Barber, Esquire

Florida Department of Transportation Haydon Bums Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Gary Kissinger

Motorists Information Services Coordinator Florida Department of Transportation Haydon Bums Building

605 Suwannee Street

Tallahassee, Florida 32399

Bill Trefz District Secretary

Florida Department of Transportation 801 North Broadway

Bartow, Florida 33830-1249

Jim Dunsford

District 1 Outdoor Advertising Administrator Florida Department of Transportation

801 North Broadway

Bartow, Florida 33830-1249

Docket for Case No: 91-004804

Orders for Case No: 91-004804