miles south of SR 143 and bearing the logo "Best Western,,, was in violation of the provisions of Section 479.07(1), Florida Statutes (1984 Supp.), because it had no sign permit; that the sign had been erected or maintained without the required permit, in violation of Section 479.105, Florida Statutes (1984 Supp.); and finally that the location of the sign violated the spacing requirements of Section 479.07(9), Florida Statutes (1984 Supp.).
By demand for formal hearing Pursuant to Fla. Stat. 120, Respondent Patel asked for a formal administrative
hearing. At hearing as before, DOT contended that, in the absence of a timely hearing request by the sign owner, DOT had properly taken the facts alleged in the notice to show cause as true; and had been within its rights in removing the unpermitted sign.
V.J. Patel, general manager of the Best Western North Florida Inn, caused a sign to be erected a tenth of a mile south of State Road 143, advertising the motel. At all pertinent times, Shree Realty, Inc., Mr. Patel's employer, owned both the motel and the sign. At no time was the owner's name anywhere on the sign.
Glenel Bowden, an outdoor advertising sign inspector employed by the Department of Transportation (DOT), told Mr. Patel he thought the unpermitted sign, visible to southbound traffic on Interstate 75, was unlawful. Mr. Pate1 and Mr. Bowden discussed the question of the sign's legality on several occasions.
On August 28, 1989, Mr. Bowden posted a fluorescent orange violation notice on one of the poles supporting the sign, visible to anyone viewing either of the sign's faces from the highway. Petitioner's Exhibit No. 3. With this development, conversations between the two men ceased. When Mr. Bowden returned to the sign a few days after posting the violation notice, the notice had been removed. Although he stopped by the motel in search of Mr. Patel, and telephoned several times, leaving requests that Mr. Patel return his telephone calls, Mr. Bowden did not succeed in speaking to Mr. Patel again until October 17, 1989, the day the sign was taken down.
On August 29, 1989, DOT's administrator for District Two, Tom Brown, signed a notice to show cause addressed to "Vijay" Patel at Route 1, Box 222, Jennings, Florida. DOT sent the notice by certified mail that day, and it arrived at the motel the following day. Tina Williams, a desk clerk, signed for it.
The notice DOT mailed to Mr. Patel advised of the necessity to ask for a formal administrative hearing, if desired, within 30 days. The notice stated:
You must comply with the applicable provisions of the said Statute(s) and Code(s) within thirty (30) days from the date of the posted notice . . . or, in the alternative, an administrative hearing must be requested by you within thirty (30) days of the date of this notice. . . . In either case, if you fail to comply within the thirty (30) day period above, then the . . . violation(s) shall be considered true . . . [one
possible result being] removal of the sign without further notice.
The notice, itself dated August 29, 1989, advised that the sign "was posted with a notice pursuant to Section 479.105(l)(a) on August 28, 1989."
On October 2, 1989, 32 days after the notice DOT mailed reached the motel, Mr. Patel went to a lawyer's office. That day the lawyer signed and mailed a request for hearing on behalf of V. J. Patel. The hearing request reached DOT on October 5, 1989, 38 days after Mr. Bowden posted the notice of violation on the sign pole, and 37 days after DOT mailed notice to Mr. Patel. Until the final hearing, when counsel first disclosed the true owner of the sign to DOT, Shree Realty, Inc. never requested a hearing.
CONCLUSIONS OF LAW
On receipt of Mr. Patel's hearing request, DOT referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), although it maintained that the demand for hearing was untimely. Accordingly, the "division has jurisdiction of the formal proceeding," Section 120.57(1)(b)3., Florida Statutes (1989), including the question of the timeliness of the request for hearing. Symons v. State Department of Banking and Finance, 490 So.2d 1322 (Fla. 1st DCA 1986).
When an agency proposes to act in a manner affecting a person's substantial interests, "the due process requirements of the Administrative Procedure Act," Hiqhsmith v. Department of Professional Regulation, Board of Opticianry, 499 So.2d 19, 21 (Fla. 1st DCA 1986) dictate that the agency provide a "point of entry." Id. The agency must take reasonable steps to communicate a time certain by which substantially affected persons must request administrative proceedings pursuant to Section 120.57, Florida Statutes (1989), or forego the right to such proceedings.
Where the affected person's business address is known, and no other address is known to an agency required to mail notice, the agency must mail the notice to the business address. Highsmith v, Department of Professional Regulation, Board of Opticianry, 499 So.2d 19 (Fla. 1st DCA 1986). But service on an adult congregate living facility's administrator was held sufficient, even though a "dispute [as to notice] could have been avoided by the agency sending notice to the licensee's address as well." Shalom Manor, Inc. v. Department of Health and Rehabilitative Services, 497 So.2d 740, 740-1 (Fla. 4th DCA 1986.)
In the case of anonymous placement of unpermitted outdoor advertising signs, the legislature requires that notice be posted on the sign:
479.105 Signs erected or maintained without required permit; removal -
Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and
shall be removed as provided in this section.
Upon a determination by the department that a sign is in violation of s. 479.07(1), the department shall prominently post on the sign face a notice stating that the sign is illegal and must be removed within 30 days
after the date on which the notice was posted. However, if the sign bears the name of the licensee or the name and address of the non-licensed sign owner, the department shall, concurrently with and in addition to posting the notice on the sign, provide a written notice to the owner, stating that the sign is illegal and must be permanently removed within the 30-day period specified on the posted notice. The written notice shall further state that the sign owner has a right to request a hearing, which request must be filed with the department within 30 days after the date of the written notice.
However, the filing of the request for a hearing will not stay the removal of the sign.
The statute requires only that notice be posted 30 days before the owner's point of entry expires, not that it remain posted for 30 days. Otherwise, an anonymous sign owner could frustrate DOT's ability to act, simply by removing the notice before the 30-day period was up.
Although respondents have not raised the point, the statute specifies that notice be "post[ed] on the sign face." Section 479.105(1)(a), Florida Statutes (1989). In this particular, DOT failed to comply with the literal wording of the statute. Petitioner's Exhibit No. 3. But the notice was posted high enough on a supporting pole to be visible to anybody viewing the sign face, and the evidence showed that employees of the owner of the sign received actual notice of the posting through the mail. In these circumstances, DOT's technical noncompliance, doubly cured, was inconsequential in fact and immaterial in law.
At hearing, DOT contended that the hearing request should be dismissed because it was made on behalf of V.J. Patel, not Shree Realty, Inc., the sign's owner. Although it is unnecessary to reach the question, any dismissal on such grounds would presumably be without prejudice to the filing of an amended request naming the sign's corporate owner.
Request Untimely
Only if the sign had borne "the name of the licensee or the name and address of the non-licensed sign owner," Section 479.107(1), Florida Statutes (1989), would the statute have required DOT to mail notice. But, since the notice DOT mailed may be read to extend the deadline for requesting a hearing by a day, DOT is estopped to contend that the sign owner was under an obligation to make its request for hearing before September 28, 1989, in accordance with the terms of the notice. See City of St. Cloud v. Department of Environmental Regulation, 490 So.2d 1356 (Fla. 5th DCA 1986); Manasota 88, Inc. v. State Department of Environmental Regulation, 417 So.2d 846 (Fla. 1st DCA 1982).
Respondents contend that an additional five days should be added for service by mail, citing Rule 1.090, Fla.R.Civ.P., adopted by reference in Rule 14-6.009, Florida Administrative Code, "whenever applicable." But this argument ignores provisions in Chapter 14-10, Florida Administrative Code, the portion of DOT's rules dealing specifically with "CONTROL OF OUTDOOR ADVERTISING." Rule 14- 10.004(8)(b), Florida Administrative Code, provides:
All requests for hearing shall be made in writing and shall be filed with the Clerk of Agency Proceedings within 30 days of receipt of the Department's intended action. A request for hearing is filed when it is received by the Clerk of Agency Proceedings. A request for hearing is not timely filed unless it is received by the Clerk of Agency Proceedings within the specified time.
(Emphasis supplied.) Under this rule, a sign owner whose employee received notice of "the Department's intended action" on August 30, 1989, would have had until September 29, 1989, in which to file a request for hearing, and a request reaching DOT on October 5, 1989, six days later, as this one did, would have been untimely.
The statute specifies a 30-day period, running from the date of posting. "[T]he sign owner has a right to request a hearing, which request must be filed with the department within 30 days after the date of the notice." Section 479.105(1)(a), Florida Statutes (1989)(Emphasis supplied.) Because the sign here did not bear "the name of the licensee or the name and address of the non-licensed sign owner," Section 479.105(1)(a), Florida Statutes (1989), the "notice" to which the statute refers is necessarily the notice posted on the sign. Cf. Wilson v. Clark, 414 So.2d 526 (Fla. 1st DCA 1982)("even though the operative statute . . . provides that notice . . . must be mailed to a party,
. . . some other prior event may trigger the period within which action must be taken." At 531, quoting 2 Moore, Federal Practice P. 6.12 at 1500.210 (1982)) Here, of course, in the absence of the sign owner's name and address, the statute did not even require service of notice.
Because DOT complied, in all material respects, with the prescribed statutory procedure for affording substantially affected persons a point of entry, and respondents failed to file a timely request for formal hearing, DOT was entitled to take action without affording respondents, or either of them, a formal administrative hearing under Section 120.57, Florida Statutes (1989). RHPC, Inc. v. Department of Health and Rehabilitative Services, 509 So.2d 1267 (Fla. 1st DCA 1987); Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986). Respondents failed to prove excusable neglect caused their hearing request to be filed out of time.
