Walker v. State, Dept. of Transp.

• Decision Date: 04 January 1979
• Docket Number: No. II-103,II-103
• Parties: Lyman WALKER, III, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

Page 96

366 So.2d 96

Lyman WALKER, III, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.

No. II-103.

District Court of Appeal of Florida, First District.

Jan. 4, 1979.

Rehearing Denied Jan. 30, 1979.

Jon D. Caminez, Tallahassee, for appellant.

Alan E. DeSerio and Phil S. Bennett, Tallahassee, for appellee.

BOOTH, Judge.

This cause is before us on appeal from the final agency action ordering removal of petitioner's three outdoor advertising signs located on Interstate Highway 75. The Department of Transportation (DOT), rejecting the recommendation of the hearing examiner, has ordered removal of the signs worth an estimated $15,000 for failure of appellant to timely renew sign permits by payment of the annual fee for 1976 in the amount of $31.00. ¹ Subsequent to its refusal to accept payment for the 1976 permits, payment for subsequent years attempted to be made by appellant Walker was also rejected.

Appellant has been selling pecans along the roadside and maintaining signs advertising that fact for more than 20 years. ² The three signs in question, located in Hamilton County, were each erected prior to December 8, 1971, and, since located within 660 feet of the nearest edge of the I-75 right-of-way, come within the purview of the Federal Highway Beautification Act, also known as the "Ladybird Act." ³ Owners of signs lawfully erected and in existence on December 8, 1971, are entitled to full compensation under the federal and Florida statutes if and when a sign is removed under the Federal Beautification Program. ⁴

The instant case is one of a number of cases presently before this Court involving the disputed use by DOT of the police power to remove, on the grounds of late payment of fees, signs which would otherwise require compensation under the Federal Highway Beautification Program. ⁵

The facts of this case are that on January 10, 1975, appellant paid, and DOT accepted, permit fees due on the three signs in question for the years 1972, 1973 and 1974. Payment was made to Mr. Glass, one of DOT's field representatives, who as was customary in the rural areas, came to collect the permit fees. On payment of his fees, appellant was given a current permit for those years and a permanent metal tag ⁶ which he affixed to each of his signs. Thereafter, appellant Walker moved to south Florida to seek work raising watermelons while his family remained in his Lamont, Florida, home. Fees for the year 1976 were not paid. On Walker's return to north Florida in November of 1976, he attempted to pay all fees due including those for the year 1977. The application and fees were rejected by the DOT as to the three signs on I-75. Late renewal fees for Walker's other signs, not affected by the Ladybird Act, were accepted.

In January of 1977, Walker filed a petition for writ of mandamus in the Circuit Court, Leon County, seeking to require the Department to accept fees and issue permits on the three signs in question. The court found that Walker had not received proper notice, and directed that the Department give notice and afford him the right to a hearing prior to the "revocation" of the permits. ⁷

The sufficiency of the notices sent to Walker and the claimed right of the Department to summarily cut down signs if the owner had not timely paid a renewal fee, were issues litigated in the mandamus proceeding and resolved contrary to the Department's contention. No appeal was taken from that proceeding.

Pursuant to that writ, DOT on March 21, 1977, sent Walker a printed "form" notice listing the three signs. Typed on the printed form at the bottom of the "Violations" section was the following: "FAILURE TO RENEW PERMIT TAGS ABOVE LISTED SIGNS MUST BE REMOVED" and then follows the printed portion of the notice stating:

"That Unless the applicable provisions of said Chapter 479, Sections 335.13 and 339.301 Florida Statutes are complied with within thirty days from the receipt of this notice and written notice of compliance furnished to the Department of Transportation's Administrator of Outdoor Advertising . . . or in the alternative, an administrative hearing under Section 120.57 Florida Statutes is requested by you within 14 days of receipt of this notice, Then the above described violation(s) shall be considered to be true. In either case If you fail to reply within the 30 day period above, the Department of Transportation reserves the right to take such action as the law permits including by but not limited to the removal of the sign(s) in violation without further notice." (emphasis supplied)

This printed portion of the notice complies with Florida Statute § 479.08, Revocation of permits and Florida Statute § 120.60(5).

Within thirty days of the foregoing notice, acting on the reasonable belief that he was entitled to pay the fees due, Walker again attempted to pay the fees. Once again DOT refused payment. Walker then requested an administrative hearing. During the pendency of the proceedings, one of Walker's signs was cut down by DOT employees. ⁸ The DOT contends that it was not required, and the notice of March 21, 1977 was not intended, to afford Walker thirty days within which to pay the fees due, but that the sole purpose was to allow him to claim a hearing. The DOT further contends that the only issue to be addressed at such hearing would be whether Walker had in fact paid fees timely, a matter not in dispute. Acceptance of DOT's interpretation renders Walker's right to notice a nullity and the mandamus proceeding meaningless.

We reject these contentions and agree with that portion of the hearing examiner's order which recommends that Walker be afforded an opportunity to pay the permit fees due.

The basic contention of DOT is that its past policy of allowing sign owners to purchase annual permits after the January 1st due date was improper, not authorized by the statutes, and therefore subject to be abandoned at any time without notice to sign owners. The same contention was made in Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977) and rejected by this Court.

The record before us establishes, and DOT concedes that, it has in the past issued permits to persons paying fees even several years late. Appellant Walker himself paid such late fees covering three years in 1974 and DOT has continued to accept late fees as to signs Not affected by the Ladybird Act. This policy was widespread and was known to, and relied on by, sign owners. Testimony of the Administrator of Outdoor Advertising for the State of Florida in the record before us is that it was the practice of DOT to allow fees to be paid after January 1, and that delinquency notices were sent out giving a grace period, or opportunity to pay, after the January 1st date. There was no evidence introduced that DOT had at any time prior to the "new procedure" being adopted, refused to accept late fees from any sign owner.

The Legislature has authorized the DOT to collect fees and has set out the annual due date of the fees. Nothing in the statutes proscribes DOT's acceptance of fees after the due date. For a number of years DOT has construed the statutes to allow collection of fees after the due date. As the agency charged with the responsibility of administering Chapter 479 and related statutes, the construction placed on these statutes by DOT is persuasive with this Court. This is particularly true where, as here, the agency's construction has been established by long usage. ⁹ As stated by this Court in Austin v. Austin, 350 So.2d 102, 104 (Fla. 1st DCA 1977):

"The law is well settled that longstanding statutory interpretations made by officials charged with the administration of the statutes are given great weight by the court . . ."

In State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823, 828 (Fla.1973), the Florida Supreme Court rejected the Board's contention that despite its past practices, it was not legally authorized to award dates based upon traditional racing seasons, stating:

"It has been invariably the practice of the Board . . . to issue annual licenses and annually fix and allocate the racing dates of the Florida greyhound tracks for the period of September of each year to September of the following year. Such administrative construction of the statute by the agency or body charged with this administration is entitled to great weight and will not be overturned unless clearly erroneous . . ."

Since this litigation, DOT adopted a rule on December 10, 1977, ¹⁰ which states that late fees will not be accepted. In apparent response, the Legislature has amended Florida Statute § 479.07(3) to require DOT send a second notice of fees due and allow for payment, with a 10% Penalty for tardiness, after the due date. ¹¹ Thus, DOT's past practices, with the addition of the penalty provision, have now been codified.

Our decision has not required consideration of the claim of DOT that failure to timely renew the annual permit on a sign causes automatic expiration of the permit and gives the Department the immediate right to remove the sign. Questions of confiscation and due process which might arise under the interpretation of the statutes urged by the Department are not determined in this proceeding. ¹² It is also unnecessary to rule on the extent to which, if any, the Ladybird Act allows the states to use police power, as claimed by DOT, in order to avoid the federally mandated payment of compensation for signs removed under the beautification program. ¹³

The public good contemplated by the Highway Beautification Act is not superior to the right of the citizen to own private property and to be treated fairly by his government with respect to that property. The Florida Legislature has expressly recognized the right of owners of certain signs to be compensated for loss of these signs. The DOT may not avoid the right to compensation by refusing to accept the permit fees which it...