STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4957T

)

BLACK OLIVE NURSERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on October 29, 1991, in Fort Lauderdale, Florida.

APPEARANCES

FOR PETITIONER: Jay O. Barber, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

FOR RESPONDENT: Billy J. Nichols, pro se

Black Olive Nursery

5021 Southwest 51st Street Davie, Florida 33314

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether the notice of violation issued by Petitioner for an unpermitted sign should be upheld and the sign removed.

PRELIMINARY STATEMENT

Petitioner issued its notice of violation on May 1, 1991. Respondent requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on August 5, 1991. The proceeding was assigned to the undersigned on August 8, 1991, and scheduled for a formal hearing on October 29, 1991, pursuant to the Notice of Hearing issued on August 20, 1991.

At the formal hearing, Petitioner presented the testimony of four witnesses, 1/ and submitted three exhibits for admission in evidence. Petitioner's Exhibits 1-3 were admitted in evidence without objection. Mr. Billy J. Nichols, Respondent's owner, testified on behalf of Respondent and submitted no exhibits for admission in evidence.

A transcript of the formal hearing was not requested by either party.

Proposed findings of fact and conclusions of law were timely filed by Petitioner on November 6, 1991. Respondent did not file proposed findings of fact and conclusions of law. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a nursery organized as a Florida corporation. Respondent has been in business in Davie, Florida since 1969. Respondent's business involves both the wholesale and retail sale of nursery goods.

   
   

2. Respondent is located several hundred feet west of U.S. 441. The business premises are not readily visible from U.S. 441. Access to Respondent's premises from U.S. 441 is by dirt road.

   
   

3. Respondent erected a sign adjacent to the right of way for U.S. 441 in 1969. The sign advertised Black Olive Nursery and identified the dirt road access from U.S. 441. At the time, no sign permit was required by state law.

   
   

4. Respondent applied for and paid for sign permits in 1975 and 1976. The sign permits were issued by the local county government and were effective for two years. No applications for sign permits have been made to Petitioner by Respondent from 1975 to the present.

   
   

5. The sign is subject to the current permitting requirements of state law. The sign does not have a valid state permit.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

7. Petitioner has the burden of proof in this proceeding. Petitioner is the party attempting to show the affirmative of the position that Respondent's signs should be removed. Petitioner must show by a preponderance of the evidence that it is entitled to the relief requested in this proceeding. Balino

   v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

8. Petitioner satisfied its burden of proof in this proceeding. Petitioner presented competent and substantial evidence that Respondent did not apply for the required sign permit and did not have a currently required sign permit for the sign erected in 1969. The sign was not within an area for which signs are exempt from applicable permitting requirements.

   
   

9. The sign at issue in this proceeding is an outdoor advertising sign within the meaning of Section 479.01(14), Florida Statutes. The sign is an unpermitted sign located outside an incorporated area or on a portion of the federal-aid primary highway system and within 660 feet of the nearest edge of the right-of-way of a federal-aid primary highway within the meaning of Sections 479.07(1) and 479.11(1), respectively.

   
   

10. Respondent is prohibited by Section 479.07(1), Florida Statutes, from erecting, operating, using, or maintaining such a sign without first obtaining a sign permit. Section 479.07(8)(a) provides that permits expire annually on

January 15, and all renewal fees must be submitted no later than January 15 each year. Respondent has not applied for a sign permit since 1977. The sign at issue in this proceeding has no valid permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the notice of

violation, and requiring Respondent to remove the sign in accordance with

applicable Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992.

DANIEL MANRY

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 January, 1992.

ENDNOTE

1/ Petitioner presented the testimony of the Respondent, Ms. Linda Medeiros, Respondent's sister; Mark Johnson, Inspector for Petitioner; and Fred J. Harper, District Supervisor for Petitioner.

APPENDIX TO RECOMMENDED ORDER

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Finding 3

3. Accepted in Finding 4

4. Accepted in Finding 4

5-6 Rejected as irrelevant and immaterial

Respondent has submitted no proposed findings of fact.

COPIES FURNISHED:

Ben G. Watts, Secretary

Atten: Eleanor F. Turner, M.S. 58 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

Jay O. Barber, Esquire Assistant General Counsel Department of Transportation 605 Suwannee St., MS-58 Tallahassee, Florida 32399-0458

Billy J. Nichols pro se Black Olive Nursery, Inc. 5021 S.W. 51st Street Davie, Florida 33314

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.

Docket for Case No: 91-004957

Orders for Case No: 91-004957