Findings Of Fact Based on the record transmitted to the Division of Administrative Hearings by the Petitioner, the following are found as the relevant facts: The Respondent, Hinson Oil Company, owns four outdoor advertising signs in Gadsden County, Florida, located on the south side of I-10, in the proximity of County Road 270-A. On October 3, 1984, the Department of Transportation notified the Respondent in writing that these signs violated Section 479.11, Florida Statutes, in that they were alleged to be located in an area which is not a zoned or unzoned commercial or industrial area. The return receipt was signed by E. W. Hinson, Jr., on October 9, 1984. Paragraph 2 of the notices of violation served on October 3 and received on October 9, 1984, sets forth the following procedural requirements: You must comply with the applicable provisions of said Statute(s) and Cede(s) within thirty (30) days from the date of this notice, . . . or in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice . . . E. W. Hinson, Jr., on behalf of the Respondent, requested an administrative hearing by letter dated November 16, 1984. This request was received by the Department of Transportation clerk on November 19, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing with prejudice the Respondent's request for an administrative hearing in each of these cases. THIS RECOMMENDED ORDER entered this 24th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire and Maxine Fay Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 E. W. Hinson, Jr. Hinson Oil Company P.O. Box 1168 Quincy, Florida 32351 John Curry, Esquire P.O. Drawer 391 Quincy, Florida 32351
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 3115 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
The Issue Whether two signs owned by Respondent Simbo's Restaurant-Auto-Truck Stop, one located along Interstate 10 approximately .8 of a mile east of State Road 79 and the other located along Interstate 10 approximately .8 of a mile west of State Road 79, each bearing the copy: "Simbo's Restaurant-Auto-Truck Stop Next Exit-Open 24 Hours", are in violation of Section 479.07, Florida Statutes and Section 479.11, Florida Statutes, neither of which have been granted a permit and both of which are within twenty (20) feet of the right-of-way of Interstate 10.
Findings Of Fact No permit has been issued to or is affixed to either of the subject signs. The distance from the fence running parallel to Interstate 10 to the sign located approximately .8 of a mile west of State Road 79 is fourteen and one-half feet. The distance from the fence running parallel to Interstate 10 to the sign located approximately .8 of a mile east of State Road 79 is five and eight-tenths feet. The distances from both signs to the edge of the right-of- way of Interstate 10 are less than five hundred (500) feet. No application for the erection of either sign was made prior to the erection of the signs. These signs were erected in the first half of the year 1976 on private property. The Respondent contends that the classifications established in the Florida Outdoor Advertising Law, Chapter 479, violated the equal protection clause of the 14th Amendment of the United States Constitution. There is no merit to this contention.
Recommendation Remove subject signs if such signs have not been removed by the owner within ten (10) days after the final order herein. DONE and ORDERED this 5th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 J. D. Bodiford, Esquire Post Office Box 1022 Panama City, Florida 32401 Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue Whether subject sign is in violation of state and federal law for the reason that no permit was secured at time of erection of subject sign.
Findings Of Fact Respondent proceeded to erect subject sign prior to January 29, 1975, and continued such erection after January 29, 1975, the date a Notice of Outdoor Advertising Violation was served on Respondent Corporation by the District Sign Inspector. Said notice of violation notified Respondent that Respondent Corporation was in violation of Chapter 479, Florida Statutes or Section 335.13, Florida statutes for the reason that no permit had been secured and that the erection of said sign was in violation of the specific requirement of Chapter 479, Florida statutes inasmuch as subject sign was approximately 250' from an existing sign. Respondent continued to erect subject sign despite objections from the Florida Department of Transportation. On the date of the hearing the Respondent testified that as of that date an application had been made and permit had been approved. The sign coordinator testified that the sign which had been permitted and which was so spaced to prohibit the building of Respondent's sign had been removed after the Notice of Hearing had been set. The complainant contended that Respondent erected subject sign without first applying for a permit; that after Notice of Violation Respondent disregarded the notice and the law and continued to build subject sign; that not until notice of this hearing was received did Respondent "buy out" the offending sign which prohibited the issuance of permits. The Respondent did not deny that no permit was issued before erection of subject sign but contends that permits have now been issued.
Findings Of Fact In May of 1980, the Petitioner, Peterson Outdoor Advertising purchased a sign from Lamar Advertising Company. This sign is located on the east side of State Road 434, approximately 350 feet north of State Road 50 in Orange County, Florida. This sign is a stacked, back to back structure, having two faces which face north and south. The face which is the subject of this proceeding is the south face which faces northbound traffic on State Road 434. This face is visible to traffic on the main-traveled way of State Road 50. When the Petitioner purchased the subject sign from Lamar, it checked the records of Lamar, and the records of the Department of Transportation and the orange County Building and Zoning Department, to ascertain that the sign had all required building permits, electrical permits, county permits and state permits, and that the sign site was a legal location. The sign had all the permits that were required. The relevant document from the Department of Transportation pertaining to the subject sign was a letter dated March 13, 1978, from the Department's district office to Lamar. This letter returned the permit applications that had been submitted by Lamar in February of 1978 seeking permits for the subject sign, for the reason that "your applications do not require a state permit". The parties stipulated that, prior to May of 1984, the personnel of the Department's Fifth District gave advice that signs along non-controlled roads within 660 feet of a federal-aid primary highway did not need a state sign permit. The Petitioner relied on the determination of the Department that the subject sign site did not require a state permit, and purchased the sign from Lamar. In May of 1984 the Fifth District personnel of the Department corrected their erroneous prior interpretation of the statutes and rules they administer, and permits were thereafter required for all signs within 660 feet of a federal-aid primary highway if they were visible from the main-traveled way of the controlled road. On July 1, 1985, the Department's outdoor advertising inspector advised the Petitioner that the south faces of the subject sign required a state permit. These are the faces in question in this proceeding. In compliance with this advice from the Department, the Petitioner filed permit applications for both the north faces and the south faces of the subject sign. The Department returned the applications for the north faces for the reason that a permit was not required. The north faces are not involved in this proceeding. The Department denied the Petitioner's applications for the south faces by memorandum dated October 8, 1985, for the reason that these faces conflicted with permits held by Maxmedia, Inc., in that they were not located more than 1,000 feet from the Maxmedia sign. The Maxmedia permits authorized a sign which was erected at a point 740 feet from the subject sign of the Respondent. The permits held by Maxmedia were issued by the Department on May 8, 1984. Prior to July 1, 1984, the spacing rule for signs on a federal-aid primary highway required 500 feet between signs. On July 1, 1984, this spacing requirement was increased to require 1,000 feet on a federal-aid primary highway. State Road 50 is a federal-aid primary highway, and the area within 660 feet from State Road 50 is a controlled area. The Petitioner's sign 350 feet north of State Road 50 was more than 500 feet from any other structure prior to July 1, 1984. It is not more than 1,000 feet from the Maxmedia signs now, however.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Peterson Outdoor Advertising for a permit on the east side of State Road 434, approximately 350 feet north of State Road 50, facing south, in Orange County, Florida, be GRANTED. THIS RECOMMENDED ORDER entered on this 29th day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1986. COPIES FURNISHED: Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of the sign depicted in Exhibit 1 located on the west side of U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. No permit has ever been issued for this sign. DOT is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. U.S. 19 is a federal aid primary highway. The sign in issue is an outdoor advertising sign as that term is defined in Section 479.01(14), Florida Statutes (1989). On April 4, 1975, Palmetto County issued Respondent a building permit to erect a sign in the same general location as the existing sign. Bay Colony had maintained a large billboard at this approximate location sometime before 1969. By 1975, the lumber and timbers in the billboard had rotted and required replacement. No evidence was presented that a state permit was ever issued for the original billboard. The existing sign was removed by county officials when a drain line was placed under U.S. 19 and replaced with a strengthened base when the work was completed. On one occasion during the last few years, the sign was demolished by vandals and replaced at a slightly different location. The sign is on private property owned by a Van Hoogen who lives in New Hampshire. The property owner's permission for the use of this site is not an issue in these proceedings. There exists a permitted sign some 570 feet from Respondent's sign located on the same side of U.S. 19 and visible from the same direction as Respondent's sign.
Recommendation It is recommended that a final order be entered requiring Respondent to remove its sign along U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Florida. K. N. AYERS 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 4th day of May, 1990. COPIES FURNISHED: Frank J. Seiz 481 Palmetto Point Road Palmetto, FL 34221-9721 Rivers Buford, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether the Respondent is in violation of Sections 479.07(1)(2)(4)(6) and 479.02, Florida Statutes.
Findings Of Fact A notice of alleged violations was sent to Respondent dated October 27, 1975 stating that pursuant to the applicable provisions of Chapter 479, Section 335.13 and Section 339.301, Florida Statutes, and pursuant to the provisions of Section 120.57, Florida Statutes, the Respondent was notified that the sign structures owned by him were in violation of provisions of Chapter 479, Sections 335.13 and 339.301, Florida Statutes. The subject signs were identified as follows: Copy: Aucilla Plaza Church - Gas Location: 2/10 miles north Junction I-10 Highway: State Road 257 Copy: Credit Cards Honored - Chevrolet 60 9/10, Supr. 65.0 Location: 2/10 miles north Junction I-10 Highway: State Road 257 Prior to the hearing a letter was received from an attorney for the Respondent, Ike Anderson, stating that the Respondent was willing to take down all of the signs and that a hearing was not needed. No Motion for Dismissal was made and no continuance or dismissal was ordered. By letter to the Petitioner, Department of Transportation, the Hearing Officer advised of the receipt of such communications, but no response was received from Petitioner. The hearing was called to order and the witness for Petitioner testified that the signs have been removed except the copy of one of the signs is leaning in the approximate same location against the fence. The poles from which the signs were erected are left standing in the same location. The Hearing Officer further finds: That poles standing alone do not constitute a sign; That a facing of a sign leaning against a fence with the face away from a highway does not constitute a sign. It is the duty of the Department of Transportation under Chapter 479, F.S., Chapter 335, F.S., and Chapter 339, F.S., to enforce the outdoor advertising laws of the State of Florida and that the Respondent, John Taylor, has had a hearing, as provided in Chapter 120, F.S., and as provided in Section 479.17, F.S., and Section 335.13, F.S.
Recommendation Enter an order requiring the removal of outdoor advertising signs erected at this location. DONE and ORDERED this 13th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. John Taylor Route 1, Box 142 Monticello, Florida 32344 Ike Anderson, Esquire P. O. Box 56 Monticello, Florida 32344
The Issue Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
Findings Of Fact The sign at issue in this case was the subject of an earlier administrative hearing conducted in DOAH Case Nos. 83-1180T and 83-1181T on November 8, 1984. That consolidated proceeding arose as a result of a notice of illegal sign issued by the Department against Herbert J. Shaw, Sr., and Donna Shaw, his wife, alleging they were the owners of a sign located on the State's right-of-way. The transcript of that formal hearing shows that the Department presented its case-in-chief and then rested. Those Respondents began presenting their evidence. A discussion was then held off the record, after which an announcement was made on the record that those Respondents had agreed with the Department's position, that they had withdrawn their request for an administrative hearing, and that the matter would be finally resolved in one of two ways: 1) those Respondents would purchase from the Department the amount of property required to eliminate any encroachment of the sign in question, or 2) the Department would remove the sign. The proceeding was then adjourned, and an Order Closing Files was entered by the assigned Hearing Officer of the Division of Administrative Hearings. On December 13, 1984, a document entitled Final Order was entered by the Secretary of the Department that provided, in part, as follows: Because the formal requests for hearing made by the Respondents have been withdrawn, it is ordered that these cases be dismissed. It is further ordered that the outdoor advertising signs be removed pursuant to agreement of the parties (R-31) if within a reasonable amount of time an agreement between the parties cannot be reached as to a price and amount of property to be conveyed to the Respondents to eliminate the encroachment of the Respondent's signs on the Petitioner's right-of-way. Thereafter, Mr. and Mrs. Shaw, Sr., and the Department did not pursue the purchase and sale of part of the right-of-way. Further, the Department did not remove the sign. It appears that none of the parties to that prior action treated the "Final Order" as a final order. Rather, 5 1/2 years later the Department issued a new Notice of Illegal Sign and advised Mr. and Mrs. Shaw, Sr., that they could request an administrative hearing to determine the merits of that Notice, which is the subject matter of this action. At the beginning of the April 25, 1991, final hearing, Respondents Shaw, Sr., moved to have the style of the case amended to substitute Herbert J. Shaw, Jr., Trustee, the successor property owner, as the Respondent. Upon correction of the style, the Department made an ore tenus motion to dismiss, asserting that the 1984 final order was dispositive of all issues in the current case. The hearing was adjourned to permit Respondent to investigate that assertion and file a memorandum in response to the motion. That motion was subsequently denied, and this cause was again noticed for final hearing. However, that hearing was cancelled to permit the parties to this cause to negotiate for the sale or lease of the Department's right-of-way to Respondent. Those negotiations proved unsuccessful, and the final hearing was re-scheduled for, and conducted on, December 23, 1992. The sign in question is located in front of a restaurant which is located on Respondent's property in Key Largo, adjacent to State Road 5 (SR-5), which is also known as U.S. Highway 1. SR-5 is a part of the State Highway System. The sign is within the Department's SR-5 right-of-way. The outdoor advertising sign in question has been in the same location since 1973. Although it appears that a permit was obtained by Respondent or by his father from Monroe County, no permit for the sign was ever applied for or obtained from the Department. In 1972 or 1973, Respondent or his father presented to the Department a survey in conjunction with an application for driveway permits. Although that survey noted in some fashion the location of the sign in question, the location of the sign was not specifically brought to the attention of the Department's employees reviewing the application for driveway permits. Neither Respondent nor his father intentionally or knowingly placed the sign within the Department's right-of-way. It appears that the source of the error may have been a survey performed around 1972 which utilized a Florida Keys Aqueduct Authority plan sheet to determine the location of the Department's right-of-way. Those plan sheets have never been relied upon by the Department to show the location of its right-of-way, and no evidence was offered that the Department was the source of any erroneous information which may have been included on that plan sheet. The Department itself has made no representation which would have suggested to Respondent or to his father that the outdoor advertising sign was not located within the Department's right-of-way. On December 21, 1992, Petitioner filed its Notice of Intent to Seek Costs and Attorneys Fees. At the final hearing, the Department offered no evidence as to any costs or attorneys fees incurred by it, or the reasonableness thereof. Since the Department has thereby abandoned any claim to costs and attorneys fees pursuant to Rule 1.380(c), Rules of Civil Procedure, no findings regarding the entitlement thereto or the reasonableness thereof are made in this Recommended Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent's outdoor advertising sign to be located within the Department's right-of-way and requiring its removal. DONE and ENTERED this 3rd day of March, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of March, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5260T Petitioner's proposed findings of fact numbered 1-3, 5, 6, 10, 15, and 16 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered 7-9 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 11-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1, 2, 4, and 6-9 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 3, 10, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Herbert J. Shaw, Jr. Post Office Box 507 Key Largo, Florida 33037 Ben G. Watts, Secretary Attn: Eleanor G. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458