STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 84-4344T

) 84-4345T

HINSON OIL COMPANY, ) 84-4346T

) 84-4347T

Respondent. )

)

RECOMMENDED ORDER

The Petitioner filed its Motion to Dismiss these cases, together with its Memorandum in support thereof, on January 11, 1985. Nothing has been submitted relative to this motion by or on behalf of the Respondent. Although the certificate of service on the Petitioner's motion indicates it was served by mail on John Curry, Esquire, P. O. Drawer 391, Quincy, Florida, 32351, on January 9, 1985, the record reflects the following as representatives of the parties:

APPEARANCES

For the Petitioner: Philip S. Bennett, Esquire and

Maxine Fay Ferguson, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

For the Respondent: E. W. Hinson, Jr.

Hinson Oil Company Post Office Box 1169 Quincy, Florida 32351

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:

1. 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.

   
   

2. 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 . . .

   
   

3. 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.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of Transportation has the authority to regulate outdoor advertising signs and issue permits therefor pursuant to the provisions of Chapter 479, Florida Statutes.

   
   

5. Section 14-10.05(2)(c), Florida Administrative Code, requires the Department to furnish a copy of its violation notice to the sign owner by certified mail, return receipt requested. The record reflects that the Department complied with this requirement.

   
   

6. Section 14-10.05(2)(d), Florida Administrative Code, gives the sign owner 30 days after receipt of the violation notice to correct the violation, or in the alternative, to request an administrative hearing in writing. The Respondent's request for an administrative hearing was not made within this 30- day period.

   
   

7. The notice of violation sent to the Respondent on October 3, 1984, afforded the Respondent a clear point of entry to administrative proceedings to challenge the Department's intended action with respect to the Respondent's signs. A party who fails to timely request a hearing within the time prescribed is deemed to have waived a clear point of entry to administrative proceedings. Dickerson, Inc. v. Rose, 398 So. 2d 922 (Fla. 1st DCA 1981), held that a party failing to request a hearing within the prescribed 15-day time period waived a clear point of entry into Section 120.57(1) proceedings. In Mohican Valley v. Division of Florida Land Sales, 441 So. 2d 1126 (Fla. 1st DCA 1983), the Appellant was found to have waived its clear point of entry to administrative proceedings by failing to request a hearing within the 21-day period specifically stated in the notice to show cause. Thus, the failure to timely invoke administrative remedies clearly offered can result in preliminary agency action becoming final.

   
   

8. Accordingly, the Department's motion to dismiss should be granted.

RECOMMENDATIONS

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

Docket for Case No: 84-004344

Orders for Case No: 84-004344