STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STAR ENTERPRISE, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0340T
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
On July 12 and 16, 1996, a formal administrative hearing was held in this case by videoconference to Orlando, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Elizabeth C. Wheeler, Esquire
Johnson and Bussey, P.A. Post Office Box 531086 Orlando, Florida 32853-1086
For Respondent: Murray M. Wadsworth, Jr., Esquire
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES
Whether Petitioner timely filed a request for formal hearing.
Whether Petitioner is entitled to reinstatement of two outdoor advertising sign permits which expired for non-renewal of permit fees.
PRELIMINARY STATEMENT
On January 31, 1995, Respondent allegedly sent to Petitioner a Notice of Violation and Order to Show Cause- Nonpayment related to two outdoor advertising sign permits. On May 16, 1995, an order was entered by the Secretary granting Respondent's Motion to Strike on the issue of the hardships provisions contained in Section 479.07(8)(b), Florida Statutes (Supp. 1994). On June 13, 1995, Petitioner sent by letter, a request for formal administrative hearing; followed by a formal Petition for Administrative Hearing on August 23, 1995. On November 27, 1995, Respondent issued an Order to Show Cause and Petitioner filed its Response on December 14, 1995. On January 18, 1996, this matter was referred to the Division of Administrative Hearings for adjudication. Following discovery and continuances granted for good cause, the hearing was convened on July 12 and concluded on July 16, 1996.
Petitioner presented the testimony of three witnesses: Shirley Craig, George W. Thorpe and Bill Kelly, field maintenance coordinator for Star Enterprise. Ten exhibits were received in evidence. Respondent called three witnesses: Ann McCoy, John Garner and Michael C. Summer. Eight exhibits were admitted in evidence. Official Recognition was taken of Respondent's First Request for Admissions and the Petitioner's Response thereto. The transcript was filed on August 7, 1996. Each party filed proposed recommended orders which were filed on August 15 and 13 respectively.
Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case Number 96-0340T.
FINDINGS OF FACT
The Respondent is the State of Florida's regulatory agency for advertising along state and federal highways.
On January 1, 1995, Petitioner was the holder of three State of Florida outdoor advertising sign permits (among others): AU204-35, BH947-25 and BH948- 25.
The sign covered by Permit No. AU204-35 (hereinafter "Sign A") was a wooden billboard located approximately 100 yards east of a weight station on Interstate 4. As trucks leave the weight station heading east, the sign was to their right.
The sign covered by Permits No. BH948-25 and BH947-25 (hereinafter "Sign B) is an electrified high-rise sign located at the interchange of Interstate 4 and State Road 39. The sign is on the south side of the interchange.
The signs at issue both serviced a truck stop on the north side of the interchange at Interstate 4 and State Road 39. Sign A also serviced a fueling operation at Interstate 4 and Park Road.
About 27,000 outdoor advertising permits are listed within the Respondent's outdoor advertising system. Outdoor advertising sign permit renewal fees are due on January 15 of each year for all State of Florida outdoor advertising sign permits.
If a permit holder's renewal fees are not received by the Respondent on or before January 15 of any given year, its outdoor advertising sign permits expire.
By November 1 of each year, the Respondent sends a billing statement to every permit holder notifying them of the fees which will become due in January of the following year.
Petitioner paid its permit renewal fees in 1994.
In November of 1994, the Respondent sent to Petitioner a billing statement listing the fees which would become due on January 15, 1995, for its outdoor advertising sign permits. This billing statement included, among others, Petitioner's permits numbered AU204-35, BH947-25 and BH948-25. (Hereinafter referred to collectively as "Permits").
On January 15, 1995, permit renewal fees for Petitioner's Permits became due.
If an outdoor advertising sign permit holder has not paid its permit renewal fees by January 15 of a given year, then by February 1 of that year it is the Respondent's practice to mail to the holder a notice of violation for nonpayment. The Respondent sends an average of 350 notices of violation each year.
The notice of violation is sent certified mail, return receipt requested, and the article number on the certified mail card is documented on the bottom of the notice of violation. The notice of violation has a copy of the affected permits attached to it indicating the permits to which it applies. The notice is folded and inserted into a window envelope so that the address shows through the window. The envelope is then sealed and a certified mail card with the vendor's name on it is attached
The notice of violation notifies the permit holder that the Respondent has not received its permit renewal fees and that the listed permits will expire if the holder does not submit its permit fees, including a ten (10) percent delinquent fee, within thirty (30) days.
Petitioner's permit renewal fees were not received by January 15, 1995.
On February 1, 1995, the Respondent mailed to Petitioner by certified mail, return receipt requested, a Notice of Violation and Order To Show Cause- Non-payment. (Hereinafter referred to as "Notice of Violation").
The Respondent's Notice of Violation was mailed to Petitioner at Post Office Box 945140, Maitland, Florida 32751.
Petitioner's correct mailing address is Post Office Box 945140, Maitland, Florida 32795-5140.
The article number on the certified mail card is documented on the bottom of the Notice of Violation.
The Respondent's Notice of Violation had a copy of the affected permits attached to it indicating the permits to which it applied.
The Respondent's Notice of Violation notified Petitioner that the Respondent had not received its permit renewal fees for its Permits and that they would permanently expire if Petitioner did not submit its permit fees, including a ten (10) percent delinquent fee, within thirty (30) days.
The Respondent's Notice of Violation notified Petitioner that failure to pay its permit fees within the thirty (30) day period would subject its signs to immediate removal by the Respondent; and that Petitioner had a right to request an administrative hearing within thirty (30) days of the date of the Notice.
Petitioner did not pay its permit fees or request an administrative hearing within the time limit set out in the Respondent's Notice of Violation.
On February 23, 1995, Respondent received the 1995 renewal fees for an account identified as "Texaco Star Enterprise," which covers other permits, and that account is in good standing.
The Respondent returned the check submitted by Petitioner on August 29, 1995 for the Star Enterprise (Petitioner) account.
Star Enterprise is an organization which refines, distributes and markets petroleum products under the Texaco brand throughout twenty-six states.
In 1994 and 1995 Star Enterprise owned approximately 400 locations in the State of Florida which were operated for the purpose of selling Texaco products to the general public.
Star Enterprise operates some retail locations through its own salaried employees. These salaried operated retail outlets are known by the acronym "SORO." The SORO group is responsible for maintenance on SORO locations.
Star Enterprise also owns retail locations which are operated by third parties under a lease.
Star Enterprise presently oversees the day to day operations of its organization in the State of Florida from its office located at 650 South North Lake Boulevard, Suite 450, Altamonte Springs, Florida.
In approximately 1993, Star Enterprise began to downsize and reorganize its operations. In December 1993, Star Enterprise moved its regional office to its current location in Altamonte Springs from 555 Winderly Place, Maitland, Florida. Whereas the Maitland office had operated with approximately
130 employees, only 34 employees moved to the Altamonte Springs location. Downsizing has continued, with approximately 25 persons still employed in the Altamonte Springs office.
Since moving to its Altamonte Springs office, Star Enterprise has received mail at its physical location on North Lake Boulevard and at Post Office Box 945140 at the Maitland, Florida Post Office. Mail is delivered to the North Lake Boulevard location by the postal service and through various courier services. On weekdays mail is retrieved at the Maitland Post Office by a courier service and delivered by courier to Star Enterprise at the North Lake Boulevard office.
Budget Couriers of Florida, Inc. (hereinafter "Budget Couriers"), is a delivery service operating throughout the Orlando metropolitan area. Budget Couriers' business is retrieving packages and mail from the Post Office and delivering them to its clients.
Star Enterprise is a client of Budget Couriers.
Budget Couriers picks up the mail for Petitioner at the Maitland Post Office. The mail is not retrieved from a box with a key, but is picked up at the back door area in plastic bins. A post office employee brings the mail bin to the courier at the dock and he signs for it.
Budget Courier picks up mail at the location for several clients. Each one has separate bins for their mail.
Budget Couriers acts in the capacity of Petitioner's agent for purposes of the retrieval and delivery of mail sent to Petitioner at its Post Office Box 945140 in Maitland, Florida.
When an article of certified mail is sent to one of Budget Couriers' clients, Budget Couriers' employee signs for the article on behalf of that client.
Petitioner authorizes Budget Couriers to sign for and retrieve certified mail on behalf of Star Enterprise.
The certified mail is then placed in the client's bin.
After retrieving the mail bins at the post office, the courier delivers the mail to each client, including Petitioner.
When the mail is delivered the courier obtains a receipt for the contents of the entire bin. The receipt does not identify specific pieces of mail, including certified mail; nor is an inventory of the mail provided.
When the Respondent prepares a notice of violation to be sent to a delinquent permit holder, the article number on the certified return receipt card is documented on the bottom of the notice of violation.
The Respondent's Notice of Violation was received by Petitioner at its Post Office Box 945140 in Maitland, Florida, on February 6, 1995. The certified return receipt accompanying the Respondent's Notice of Violation was signed on behalf of Petitioner by an employee of Budget Couriers, Billy Hadd.
The article number on the certified return receipt accompanying the Respondent's Notice of Violation corresponds to the number documented on the bottom of the Respondent's Notice of Violation.
Petitioner acknowledged its receipt of the mail delivered by Budget Couriers on February 1, 2, 3, 6, 7, 8 and 9, 1995.
Star Enterprise elected to have its mail retrieved from the Post Office by a contract courier.
Petitioner did not receive an inventory of the individual articles of mail retrieved from its Post Office box and delivered to it by Budget Couriers.
Petitioner received the Notice of Violation on February 6, 1995.
The Respondent did not receive any payment in response to the Notice of Violation sent to Petitioner regarding its delinquent permit renewal fees.
Petitioner had prior knowledge of the outdoor advertising sign permit renewal process. Petitioner has been renewing its outdoor advertising sign permits as far back as 1989.
The action taken by the Respondent regarding Petitioner's Permits was consistent with the action it takes regarding any other outdoor advertising sign permit holder which fails to pay its outdoor advertising sign permit renewal fees in response to a notice of violation issued by the Respondent.
It is the policy of Respondent not to accept late payments for expired outdoor advertising sign permits.
Respondent believes that acceptance of late payments for expired outdoor advertising sign permits would violate the agreement between the Governor and the U. S. Department of Transportation. ( Hereinafter referred to as "Agreement").
Violation of the Agreement could possibly subject the State of Florida to penalties equal to ten (10) percent of the Federal participation in transportation projects within the State of Florida, which at this time would amount to a penalty of approximately sixty (60) million dollars per year.
One of the key elements of the outdoor advertising regulatory process is to treat all permittees the same. Petitioner received the same treatment from the Respondent as would any other permittee under the same circumstances.
Outdoor advertising sign permit renewal is a yearly occurrence and Petitioner was no stranger to the permit renewal process including the procedure for delinquent permit renewal fee payments. Petitioner failed to pay its outdoor advertising sign permit renewal fees on two other occasions in the past. On both of these occasions Petitioner received the Respondent's notice of violation at the same address as the violation at issue. On these past occasions Petitioner paid its renewal fees within the reinstatement period and its permits were reinstated.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Chapter 120, Florida Statutes.
The Respondent has the authority to administer and enforce the provisions of Chapter 479 and the agreement between the state and the United States Department of Transportation relating to the size, lighting and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code and federal regulations in effect, pursuant to Section 479.02(1), Florida Statutes.
Petitioner bears the burden of proof to establish that it is entitled to an administrative hearing pursuant to Chapter 120, Florida Statutes.
Section 479.07(1), Florida Statutes, provides in part:
Except as provided in s. 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or main- tained, 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....
Section 479.07(8)(a), Florida Statutes (Supp. 1994), provides in part "All licenses and permits expire annually on January 15 and all license and
permit renewal fees are required to be submitted to the department by no later than January 15."
Section 479.07(8)(b), Florida Statutes, (Supp. 1994), provides in part:
If a permittee has not submitted his fee payment by January 15, the department shall, no later than February 1, send a notice of violation to the permittee, requiring the payment of the permit fee within 30 days after the date of the notice and payment of a delinquency fee equal to 10 percent of the original amount due or, in the alternative of these payments, requiring the filing of a request for an administrative hearing to show cause why his sign should not be subject to immediate removal due to expiration of his license or permit....
* * *
...If the permittee does not respond to the notice of violation within the 30-day period, the department shall remove the sign without further notice and without incurring any liability as a result of such removal....
The sole issue in this case is whether Petitioner received the Respondent's Notice of Violation affecting Petitioner's permits.
Petitioner has failed to meet its burden establishing that Petitioner failed to receive the Notice of Violation.
An agency relationship exists between Petitioner and Budget Couriers for purposes of the retrieval and delivery of mail sent to Petitioner at its Post Office Box 945140 in Maitland, Florida.
Receipt of the Respondent's Notice of Violation by Budget Courier, as agent, is imputed on Petitioner, as principal, under the theory of agency. It is well settled that knowledge of, or notice to, an agent is imputed to the principal when it is received by the agent while acting within the course and scope of his employment, and when it is in reference to matters over which the agent's authority extends. Anderson v. Walthal, 468 So.2d 291 (Fla. 1st DCA 1985).
The greater weight of the evidence demonstrates that Petitioner did receive the Respondent's Notice of Violation at its Post Office Box in Maitland, Florida on February 6, 1995.
Petitioner has failed to show good cause which would excuse its failure to timely respond to the Respondent's Notice of Violation.
Receipt of the Notice of Violation by Petitioner placed it on notice of the Respondent's intended action and gave Petitioner a clear point of entry into the administrative process.
As a matter of law and Respondent's policy, Petitioner's Permits expired without possibility of reinstatement on March 2, 1995.
Petitioner was given several opportunities to take some action regarding its permits. In November of 1994 the Respondent sent Petitioner a billing statement indicating that its permit fees would become due in January of the following year. It was the responsibility of Petitioner to note this on its calendar. However, when the Respondent did not receive any payment from Petitioner, it sent Petitioner a notice of violation advising it of its delinquent outdoor advertising permit renewal fees and the resulting expiration of its Permits. This notice also advised Petitioner of its opportunity to reinstate its expired Permits and the time frame within which it had to do so. The Respondent received no communication from Petitioner within the required time limit. Therefore, Petitioner's Permits permanently expired as a matter of law and policy.
The Respondent then initiated removal of Petitioner's signs unlawfully remaining under its expired Permits, as is required by law and policy. The Respondent had no authority to allow Petitioner's signs to remain without a valid sign permit. There remained no avenue available to the Respondent to reinstate Petitioner's Permits. The Respondent did what it believed it was required to do as a matter of law.
Petitioner is simply trying to escape the consequences of its own negligence. Attempts to use the downsizing of Petitioner as an explanation of Petitioner's failure to renew its Permits does not demonstrate excusable neglect. At this point, Petitioner can only hold itself responsible for its inattention and lack of due diligence in paying its State of Florida outdoor advertising sign permit renewal fees.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Petitioner's outdoor advertising sign permits have permanently expired.
RECOMMENDED that a Final Order be entered determining that the request for hearing filed by Petitioner was not timely filed; and denying its request to reinstate two outdoor advertising sign permits.
DONE and ENTERED this 6th day of September, 1996, in Tallahassee, Florida.
DANIEL M. KILBRIDE, 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 6th day of September, 1996.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0340T
To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8 (in part), 11 (in
part), 12, 17, 18 (in part), 20, 25, 26, 27, 28, 29, 30, 31, 32, 33 (in part),
34, 35 (in part), 36 (in part), 37 (in part), 39 (in part), 40 (in part), 46 (in
part), 47, 48 (in part), 70 (in Preliminary Statement), 71 (Preliminary Statement in part), 74.
Rejected as subsumed or irrelevant and immaterial: paragraphs 6, 8 (in part), 9, 10, 11 (in part), 13, 14, 15, 16, 18 (in part), 19, 21, 22, 23, 24, 33
(in part), 35 (in part), 36 (in part), 37 (in part), 38, 39 (in part), 40 (in
part), 41, 42, 43, 44, 45, 45, 46 (in part), 48 (in part), 49, 50, 51, 52, 53,
54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71 (in part),
72, 73, 75 (conclusion), 76, 77 (conclusion of law). Respondent's Proposed Findings of Fact.
Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (in part),
11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,22, 25, 26 (in part), 27, 28, 29, and
30.
Rejected as against the greater weight of evidence: paragraph 10 (in part), 12.
Rejected as subsumed or irrelevant and immaterial: paragraphs 23, 24, and
26 (in part).
COPIES FURNISHED:
Elizabeth C Wheeler, Esquire Johnson and Bussey, P.A. Post Office Box 531086 Orlando, Florida 32853-1086
Murray M. Wadsworth, Jr., Esquire Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Ben W. Watts, Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
Thornton J. Williams General Counsel
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.
| Issue Date | Proceedings |
|---|---|
| Jan. 31, 1997 | Final Order filed. |
| Sep. 06, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 07/12 & 16/96. |
| Aug. 15, 1996 | (Petitioner) Proposed Findings of Fact, Conclusions of Law filed. |
| Aug. 13, 1996 | (DOT) Proposed Recommended Order filed. |
| Aug. 07, 1996 | Transcripts (Volumes 1, 3, tagged) filed. |
| Aug. 05, 1996 | Letter to DMK from Elizabeth Wheeler (RE: filing of Volumes 1 and 3 of transcript) filed. |
| Jul. 30, 1996 | Notice of Filing; DOAH Court Reporter Final Hearing Transcript (Volume 2 of 3, tagged) filed. |
| Jul. 16, 1996 | CASE STATUS: Hearing Held. |
| Jul. 12, 1996 | CASE STATUS: Hearing Partially Held, continued to 7/16/96; 10:00am; Orlando |
| Jul. 12, 1996 | Letter to DOAH from Elizabeth Wheeler (RE: enclosing original exhibits filed w/DOAH 7/11/96) filed. |
| Jul. 11, 1996 | Letter to DOAH from Elizabeth Wheeler (RE: enclosing exhibits inadvertently omitted) filed. |
| Jul. 11, 1996 | Petitioner`s Objections to Respondent`s Exhibits filed. |
| Jul. 11, 1996 | Letter to DOAH from Elizabeth Wheeler (RE: enclosing Petitioner`s exhibits which may be offered at hearing) filed. |
| Jul. 10, 1996 | (fax) Letter to DMK from D. Wheeler (RE: Objections to videoconferencing) filed. |
| Jul. 05, 1996 | (Petitioner) Response to First Request for Production of Documents; Petitioner`s Responses to Respondent`s Second Request for Admissions filed. |
| Jun. 07, 1996 | Notice of Serving Respondent`s Third Set of Interrogatories to Petitioner; Respondent`s Second Request for Admissions filed. |
| Jun. 07, 1996 | Second Notice of Hearing sent out. (hearing set for 7/12/96; 9:00am;Orlando) |
| Jun. 04, 1996 | (Petitioner) Response to Order of Continuance filed. |
| Jun. 03, 1996 | Department of Transportation`s Response to The Division of Administrative Hearings Order of Continuance Entered May 29, 1996 filed. |
| May 29, 1996 | Order of Continuance sent out. (hearing cancelled; parties to file by 6/4/96 the dates they are not available for hearing) |
| May 28, 1996 | Petitioner`s Motion for Continuance of Administrative Hearing filed. |
| May 16, 1996 | Amended Notice of Final Hearing (Video) sent out. (Video Hearing set for 6/4/96; 1:30pm; Orlando & Tallahassee) |
| May 16, 1996 | Order sent out. (Respondent`s Motion to strike is granted as the issue is moot) |
| May 16, 1996 | (Respondent) Notice of Deposition Duces Tecum filed. |
| May 10, 1996 | (DOT) Final Order filed. |
| May 09, 1996 | Letter to DMK from Elizabeth Wheeler (RE: enclosing documents to be used at hearing) filed. |
| May 03, 1996 | Respondent`s First Request for Production of Documents filed. |
| May 03, 1996 | Notice of Hearing sent out. (telephonic Motion hearing set for 5/10/96; 10:00am) |
| Apr. 09, 1996 | (Respondent) Motion for Hearing filed. |
| Apr. 05, 1996 | Notice of serving Respondent`s second set of interrogatories to Petitioner filed. |
| Apr. 04, 1996 | (DOT) Notice of Deposition Duces Tecum filed. |
| Mar. 22, 1996 | Order Continuing Hearing sent out. (hearing rescheduled for 6/4/96; 1:00pm; Orlando) |
| Mar. 22, 1996 | Notice of Service of Petitioner`s Answers to Respondent`s First Set of Interrogatories; Petitioner`s Answers to Respondent`s First Set of Interrogatories; Petitioner`s Response to Respondent`s First Request for Admissions filed. |
| Mar. 20, 1996 | Respondent`s Unopposed Motion for Continuance filed. |
| Mar. 11, 1996 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 16, 1996 | Notice of Serving Respondent`s First Set of Interrogatories to Petitioner filed. |
| Feb. 16, 1996 | Respondent's First Request for Admissions filed. |
| Feb. 16, 1996 | (Respondent) Motion to Strike filed. |
| Feb. 12, 1996 | Notice of Hearing sent out. (hearing set for 4/2/96; 1:00pm; Orlando) |
| Feb. 02, 1996 | Letter to SLS from Elizabeth C. Wheeler (RE: enclosing copy of Petition) filed. |
| Jan. 31, 1996 | (Respondent) Response to Initial Order filed. |
| Jan. 23, 1996 | Initial Order issued. |
| Jan. 18, 1996 | Notice Of Violation And Order To Show Cause-Non-Payment; Order To Show Cause; Response To Order To Show Cause; Affidavit; Agency referral letter,(Exhibits); Request for Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 29, 1997 | Agency Final Order | |
| Sep. 06, 1996 | Recommended Order | Request for formal hearing not timely filed; permits expired; not entitled to reinstatement of outdoor advertising sign permit. |
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