*1 Dec. S029371. [No. 1993.] TRAVERSO,
RICHARD Plaintiff and Appellant, TRANSPORTATION, THE PEOPLE ex rel. DEPARTMENT OF Defendant and Respondent.
Counsel A. Forest and J. Traktman for Plainitff Joseph Terry and Appellant. Ronald W. Beals as Amicus Curiae on behalf of Plaintiff and Appellant. Jr., McMillan, Charles E. William M. Spencer, C. James E. Joseph Easley, and O. J. Solander for Livesey Defendant and Respondent.
Opinion LUCAS, C. J. 5463 of the Business and Professions Code permits Section (hereafter Caltrans), the California on 10 Department Transportation notice, written to revoke a days’ or license and remove and destroy billboard that fails to with the of the off-premises comply provisions Code, (Bus. California Outdoor Act & Prof. 5200 et Advertising seq.; § further indicated). references are to this code unless otherwise statutory this case we must decide whether the provisions first paragraph action, Caltrans to take such authorizing inter impermissibly *5 fere with the due of the state and federal procedural process guarantees below, Constitutions. For the reasons set forth we the facial uphold validity of section 5463 in and find that its to the portion question application billboard owner here did not offend state and federal due process principles.
We no on the constitutional of the statute’s express opinion validity 5463,” Our reference here to “section rather than to its remaining provisions. first for is convenience paragraph, only.
I. Facts 1933, In the enacted a for the scheme Legislature statutory regulation then-existing structures. Under off-premises advertising provisions, permits for billboards were issued with little concern for considerations other than 1, (See structural and 55 safety, stability, public decency. Ops.Cal.Atty.Gen. (1972).) 6 later, in an
Three decades to spearhead legislation designed attempt cities, American President Johnson to enact beautify Lyndon urged Congress scheme would outdoor advertising. legislative effectively regulate 28, (Ill (1965).) Rec. The was to amend Cong. congressional response (23 131). the Beautification substantially Act of U.S.C. Highway § added, other 131(b) was a 10 Among provisions, imposing percent reduction federal for that failed to maintain highway funding state “effective control” over standards. highway advertising enforcing specific enactments,
In federal to the new in 1967 response Legislature (hereafter Act), amended Outdoor Act Advertising greatly expanding the state’s over outdoor regulatory authority advertising stricter by creating (United standards for the erection and maintenance of billboards. Outdoor Business, v. Advertising Co. Transportation Housing & Agency 877]; Cal.3d 746 P.2d see also rel. ex Cal.Rptr. People [242 Transportation Outdoor Co. Dept. Naegele Advertising 38 Cal.3d 150].) 515-516 State was 698 P.2d Cal.Rptr. regulation extended to mile every road in California with every major emphasis welfare, on and also on placed only public safety but protecting investment in public California’s and on aesthetic highways considerations. ex rel. (People Dept. Pub. v. Ryan Wks. Outdoor Inc. Advertising, Cal.App.3d Act order that in in the requires business outdoor engage one
advertising, (§ 5301.) must obtain a first license. Before placing Act, billboard that is subject to the must for billboard owner also apply (§ 5350.) a written secure be Permits must renewed on permit. January each (§ 5360.) on December year, they 31 of that expire year. 1959, Traverso, do licensed to business Adco Outdoor Advertising as *6 (hereafter Adco), for and valid applied received two permits authorizing Cotati, of a placement 101 in V-shaped advertising along Highway display California. the Although structure constituted two technically displays therefore two for we will to required convenience hereafter refer permits, these as permits collectively “permit.” Act, amendments to the Adco’s billboard
Following became 1959, which meant it was in but did not “nonconforming,” lawfully placed to the the Act conform enacted provisions subsequent placement 4, (see 2241) Code Regs., Cal. tit. because it was located a business § 5410, area within the section a 5205. Pursuant meaning billboard to removal or after but nonconforming subject July is on removed, a before billboard is its owner must be nonconforming justly Code, (See 5412.) Bus. & Prof. Adco was allowed to compensated. § maintain its billboard to a clause contained in section grandfather pursuant 5408, (d), of subdivision the Act. 31,
Adco renewed its each to and December permit year including up 1984, 1984, as section 5360. In the billboard fell down due required by early that are circumstances still undetermined. If the billboard was apparently acts,” assumes, “as the result of criminal or tortious as Caltrans destroyed then of the structure must be within after repair completed days receipt 4, If, (See 2272.) written notice from Caltrans. Cal. Code tit. on the Regs., § hand, maintains, other the billboard blew down in windstorm Adco as there to be no time limit for appears express completion repairs. event, letter, 10,
In Caltrans sent Adco the dated any following February “A outdoor field 1984: recent conducted this branch advertising survey by has indicated that the structure owned . has been you . . nonconforming by removed. Under the of the Outdoor Act and the provisions Advertising [¶] Code, California Administrative Title maintenance Chapter customary is allowed in as well as a downed or maintaining sign replacing damaged structure cost does not exceed of the 50% provided replacement ap However, value of the its state. this office must praised sign pre-existing be notified of and be a reasonable time schedule for the your plans provided of the a new could not be completion job. Unfortunately, application [¶] So, for this location. unless we hear from nonconforming you approved within we will have to cancel the and remove it from our 30 days, permit above, If feel list. have compensable sign you any questions regarding The letter was “Stan Lan signed free to contact this office anytime.” caster, Chief.” event, Caltrans notified
It is whether Adco disputed responded. had been revoked. Adco letter dated that its April permit letter, no to renew the bill- Adco made attempt Following receipt later, however, in now-revoked for or Two years board’s 1986. location. It did so June Adco rebuilt the billboard near its original to secure a new without first Caltrans’s obtaining approval attempting permit. *7 11, 1986, thereafter, a notice on the on June Caltrans posted
Shortly Act, billboard, including various violations of the Adco for citing was of the notice A copy a billboard without permit. of placement claiming to the notice Adco. Adco responded mailed to immediately It did original. was a reconstruction the cited billboard simply administrative review. an request and conversations correspon- after repeated
On or about August to remove the billboard pursuant Caltrans began dence between parties, “The The statute reads as follows: under section 5463. to its authority with the for the failure to revoke license or comply director may advertising and remove and destroy any of this chapter provisions after 10 days’ in violation of this chapter or maintained display placed forwarded mail and a notice on such structure sign copy written posted last known address.” to the owner at his display court the constitu- Adco filed the action challenging present superior The trial court issued of section and Caltrans’s actions. tionality Caltrans order and injunction preventing restraining preliminary temporary It of the litigation. from the new billboard outcome removing pending motion for summary judgment, ruling then Caltrans’s granted subsequent v. Adco Advertisers that the ex rel. Public Works People Dept, holding Advertisers), (hereafter Adco Cal.App.3d 849] constitutionality. settled all the Act’s regarding questions that Adco Advertisers held The Court of reversed. It first noted Appeal fell within billboard to the Act that abatement of an offending pursuant only and thus did not involve a taking the state’s legitimate powers police that Adco Adver- The court observed correctly requiring just compensation. affords due process. did not reach the whether section 5463 tisers question challenge then examined Adco’s constitutional The Court Appeal that “the first section The court concluded paragraph section 5463. for the it does not provide Act is unconstitutional on its face because be heard before sign of an fundamental due process right opportunity are of their owners deprived property.” below, we with the Court of disagree Appeal the reasons set forth
For addition, we although agree its face. In 5463 is valid on find interests that Adco possessed protectible property with the Court of Appeal that, facts presented we find on the particular in its billboard permit, here, it was due. received all the Adco
II. Discussion Both United States and the California Constitutions guarantee “life, an individual government may deprive of liberty, property, Const., (U.S. Amends.; Const., without due of law.” process 5th & 14th Cal. I, 7.) art. To determine whether a governmental § deprivation impli cates the of due requirements “we must if process, look to see the interest is within the Fourteenth Amendment’s of protection liberty property.” (Board 564, v. Roth 408 U.S. Regents L.Ed.2d [33 of Thus, 2701].) 92 S.Ct. our examination of the constitutional validity of section 5463 with an begins into whether billboards and inquiry are permits interests to due property subject process protections.
A. Protectible Interests Property
“The Fourteenth
(Fuentes
Amendment
of
v.
speaks
‘property’ generally.”
556, 575-576,
Shevin
407 U.S.
L.Ed.2d
92 S.Ct.
[32
term,
this
the United States
Court has
interpreting
Supreme
consistently
that due
concerns are
whenever the
acts
recognized
state
implicated
an individual of an interest in the use of real or
deprive
personal property,
Tribe,
(See
in
that term its
sense.”
American Constitutional
using
“colloquial
(2d
1988)
680.)
Law
in
ed.
For
v.
& Cassel-
example,
Ewing Mytinger
870],
Inc.
U.S.
the court
berry,
L.Ed.
70 S.Ct.
[94
a due
found a
interest to
performed
process analysis
impliedly
property
exist in mislabeled food
seized under a
of the federal
supplements
provision
Food,
Shevin,
(See
and Cosmetic Act.
also Fuentes v.
407 U.S.
Drug,
seller].)
seizure of household goods subject
repossession by
[state
federal courts of
have found the existence of
appeals
protectible property
(See,
cars.
interests
as “undesirable” as
possessions
junk
personal
(D.C.
1991)
v. District
Cir.
This
including property subject
interest
protectible
tangible personal property,
(See
to local ordinance or statute.
to seizure
destruction pursuant
and/or
(1977) Cal.3d 294
City
Angeles
Cal.Rptr.
Kash
Los
Enterprises
ordinance];
Blair v.
of newsracks violating city
1161
of car used
P.2d
(1932)
Consistent a interest. The value of that a billboard constitutes billboard, protectible property status, property its for achieving protected thus potential medium. It is uncontradicted its use as an advertising derives from primarily month in thousand dollars per that a billboard can several single generate that, its value as an advertis We note aside from revenues. also advertising inherent, medium, worth. For itself has pecuniary the billboard structure ing market or as have value on the open a billboard structure example, salvage. in of the Florida Court us to follow the reasoning Supreme
Caltrans urges
1985)
(here
(Fla.
When the state acts to an individual of deprive an important it not do so without may due affording procedural process protection (Sniadach the Fourteenth required by (1969) Amendment. Family v. Finance Corp. 337, 349, 354, U.S. 1820].) 395 342 L.Ed.2d 89 S.Ct. Once a [23 issued, has been permit its continued possession becomes a factor significant in the billboard owner’s legitimate of a livelihood. The pursuit revocation of owner, thus involves state action permit interests of its affecting important and therefore cannot be without accomplished due affording procedural (See, process the Constitution. Bell required by e.g., v. Burson 402 535, 90, 94-95, U.S. 539 L.Ed.2d S.Ct. 91 of driver’s [suspension [29 1586] license invokes due Trans-Oceanic Oil v. process protections]; Corp. City of 776, 783-784, Santa Barbara 85 P.2d Cal.App.2d 797-798 [194 148] issued to oil [permit to drill well could not be company particular revoked without due process].)
“The of notice and an to be heard raises no requirement opportunity barrier to the of a fair taking -But the impenetrable person’s possessions. works, itself, that it process decision-making guarantees protect Shevin, (Fuentes against arbitrary deprivation supra, 407 property.” earlier, 570].) U.S. at L.Ed.2d at As we out it is well p. pointed [32 for, that the established revocation of and the removal and destruc- permits of, tion billboards authorized exercise of 5463 constitute proper of the state. Our interests police power finding protectible property Instead, here does not alter the of this it legitimacy authority. merely and affirms a basic of due acknowledges process jurisprudence: principle Caltrans, state, that before as an act to revoke a agent Act, to abate a billboard maintained in violation of the notice and the (See, to be heard must be Mullane v. Central opportunity provided. e.g., 865, 872-873, Hanover U.S. L.Ed. 70 S.Ct. Tr. Co. 313 [94 Burson, 652]; Bell v. 402 U.S. at L.Ed.2d at pp. 539-543 pp. [29 94-95].) that the due clause of the California
Adco contends Constitution process a wider of interests than does the federal due clause. range protects process (See (1979) 25 Cal.3d Cal.Rptr. v. Ramirez People [158 (1988) 622]; Medical Assurance Quality P.2d v. Board Smith we find that billboards Because Cal.App.3d of Fourteenth Amend interests for purposes constitute permits property undertake a due separate process due we need not ment process protection, under our state Constitution. analysis Due The Process That Is
B. and billboards are property determined that Having permits protectible remains what due “the interests and therefore process applies, question L.Ed.2d (1972) 408 U.S. is due.” v. Brewer (Morrissey *11 “ 484, 494, 2593].) of of ‘The fundamental due requisite S.Ct. 92 heard,’ a that has Tittle reality law is the to be ... right opportunity for the matter is and can choose worth unless one is informed that pending ” 565, (Goss (1975) 419 U.S. 579 Lopez himself whether to . . . contest.’ v. 725, 737, (1914) v. Ordean 234 L.Ed.2d S.Ct. Grannis [quoting 95 729] [42 385, 1363, 1368-1369, 779]; and Mullane v. 34 S.Ct. U.S. L.Ed. 394 [58 Co., 873)].) (94 at Tr. U.S. at 314 L.Ed. p. Central Hanover 339 notice to the billboard Section for 10 days’ prior 5463 provides or remove a either revoke a or license owner before Caltrans may short, we find it meets billboard. the notice is relatively Although period of length due Ten is not an unreasonable notice of process. days component owner, business entity a in most cases a time for billboard sophisticated (§ 5301), to of outdoor advertising adequately in the business engaged of a Caltrans’s determination and decide whether to investigate challenge 254, (1970) U.S. Kelly Act. with v. 397 Goldberg violation (Compare to notice days’ prior L.Ed.2d S.Ct. 268 90 1011] [seven [25 benefits].) termination of assistance public to a hearing. contain an right
Section 5463 does not express court, however, have and this Both the United States Court Supreme would otherwise when constitutional problems inferred a to a right hearing 474, (1959) 507-508 L.Ed.2d (See 360 U.S. McElroy [3 v. arise. Greene (1950) 1396-1398, 35 1377, 1400]; Beach City Long v. English 79 S.Ct. (1962) 22, 547]; Bar 57 v. State Brotsky 18 A.L.R.2d Cal.2d 155 P.2d [217 697, 1310].) said 153, As we A.L.R.2d 368 P.2d 94 Cal.2d 287 Cal.Rptr. [19 is as much in a statute necessarily implied “whatever is ago, 80 nearly years 260, (1914) 167 Cal. (Johnson Baker v. of it as that which is expressed.” part 86].) 264 P. [139 silence,
In
face
a
statutory
be inferred
right
hearing may
where there is “some
from
language”
which such a
can be
requirement
(Merco
implied.
Construe.
Inc. v. Los
Engineers,
Angeles
Sch. Dist.
Unified
154,
(1969)
see,
23];
Cal.App.2d
Cal.Rptr.
e.g., People v. Amor
[79
765,
(1974) 12 Cal.3d
29-30
523 P.2d
[114
1173] [notice
inferred from statute
criminal
hearing
defendants
reimburse
requiring
some
counsel];
court costs incurred by
Carroll
appointed
Horse
California
Board
16 Cal.2d
Racing
P.2d
inferred
[hearing
[105
110]
cause”];
from statute
for horse
license revocation for
providing
training
“just
cf.
Radioactive Materials
Forum v.
Management
Department
California
Health
Services
Cal.App.4th
Cal.Rptr.2d
357] [“hear-
on the record”
does not
ing
language
Administrative Procedures Act
imply
v. San Luis
Animal
adjudicatory hearing]; Phillips
Obispo County Dept, of
Regulation, supra,
within
de-
Cal.App.3d
language
dog
379 [no
struction ordinance from which to infer hearing].)
addition,
when a statute
determination
contemplates quasi-judicial
an administrative
will
statute
be
agency,
interpreted
require hearing
(Fascination,
“unless the statute
to the
. . . .”
expressly provides
contrary
Inc. v.
Hoover
39 Cal.2d
P.2d
*12
(1953)
Our decision in
v.
Los
We the instead not although rejected finding expressly the held the ordinances the to a We that right hearing. statutory contemplated the return of seized animals to their owners language requiring unlawfully factual, factual determination or mixed contemplated legal, 282.) at v. Los 40 Cal.2d (Simpson City Angeles, supra, p. department. circumstances, for a Under these we the statute to provide interpreted owner, when on the issue whether the animal hearing, requested by dog (Ibid.) had been seized. legally that “statutes are to be so in mind the related
Bearing principles construed, render them valid and constitu if their as to language permits, (Erlich v. Court Municipal tional rather than invalid and unconstitutional” 334]), and that we 55 Cal.2d 360 P.2d Cal.Rptr. [11 decide all in favor of a must intendments” statute’s “presumptions Ins. 48 Cal.3d constitutionality (Calfarm Deukmejian Co. 1247]), 771 P.2d and for the additional reasons set forth [258 below, we hold that section 5463 contains an to a implicit right hearing.
Section 5463’s of 10 written notice days’ express requirement prior revocation or removal constitutes that the language indicating Legislature intended the ato The can serve one right hearing. 10-day only period and, function: to allow the if billboard owner sufficient time to investigate to contest appropriate, Caltrans’s determination that a violation has occurred. in the Act or the Nothing regulations indicates Caltrans would refuse afford the billboard owner a on We find relevant here the hearing request. held, that what the Constitution is not that a be but principle requires hearing rather that the government . . . ‘for provide “opportunity hearing [a] (Boddie to the nature of the case . appropriate . . .’” v. Connecticut 401 U.S. L.Ed.2d S.Ct. Mullane v. [citing 780] Co., 872-873], Central Hanover Tr. supra, 339 U.S. at L.Ed. at p. pp. italics in original.) license,
Section Caltrans revoke a or provides may billboard, remove a that fails to with or violates the Act. statute comply thus that a “factual or mixed factual and determination” contemplates legal Hoover, (Fascination, 269) Inc. v. Cal.2d at will be made circumstances, Caltrans action. Under these we conclude that prior taking section 5463 for a when implicitly provides hearing, requested by owner, billboard on the issue whether a violation of the Act has occurred. We observe that the does to a statute withhold expressly right Section 5463 that the “director revoke hearing. simply provides *13 license or for the failure to of this with the comply provisions chapter and in remove and or maintained may destroy advertising any display placed contrast, violation of this . . . .” under the second of chapter By paragraph section in violation of the Act be removed and temporary displays added.) “summarily (Italics and without notice.” destroyed It to the fact that Adco’s to the is argument contrary unpersuasive. points the the in owners of Legislature amended Act to expressly provide 1987 of such billboards the to be heard to abatement on-premises prior opportunity 5499.7, (See 4569- billboards. added Stats. ch. by pp. § § 4573.) when with the Adco contends that not by acting presented opportu- owners, billboard the to similar for nity provide protection off-premises a has evinced its intent not to for hearing. Legislature provide “ ‘ It is a well-settled of construction statutory principle “[w]here statute, with to a the a reference one contains subject given provision, omission of such from a similar statute a related concerning provision ’ ” is to show that a different intention existed.” ... subject significant v. Drake 566 P.2d 19 Cal.3d (People Nonetheless, here, when, this is as “given principle inapplicable in a added amendment contained related statute was by many provision” no More after the enactment of the statute such containing provision. years over, contention, to Adco’s it is not to us that amending contrary apparent 5499.7, concerned with necessarily anything was Legislature of beside the removal on-premises advertising displays. be
Adco also an would to hearing contrary argues finding implied in which to for notice numerous decisions statutes failing expressly provide (See, deemed unconstitutional. Kash v. e.g., Enterprises were hearing newsracks]; Merco Los Cal.3d supra, 19 City Angeles, [confiscation Dist., supra, Inc. v. Los Sch. Angeles Construction Engineers, Unified assessed contractor for unlawful bid-shop 154 [penalty against Cal.App.2d Animal Luis Phillips Obispo County Dept, v. San ping bid-peddling]; of vicious or biting supra, Regulation, Cal.App.3d [destruction supra, Food & Department Agriculture, & Son dogs]; Menefee with and destruction of treated crops unregistered Cal.App.3d [seizure cases, however, for failed only provide The statutes those poison].) heard, notice as failed to for provide predeprivation to be but opportunity cause” determinations qr did factual contemplate “just well. Nor they for “from which a legislative requirement contain other language Los (Merco Inc. v. Engineers, inferred.” Construction could be hearing Dist., 168.) at 21A Cal.App.2d Sch. Angeles Unified hand, for notice of an impend on the other provides Section for notice this provision As previously, action Caltrans. ing explained intended provide reasonable inference that Legislature creates a for a hearing. opportunity sum, for 10 notice days’ prior provides because section 5463 removal, determination a fact-finding contemplates
revocation or *14 occurred, (3) contains no express and of the Act has Caltrans that a violation an 5463 contains we conclude that section a hearing, provision precluding to a hearing, an right found Having implied to such a hearing. right implicit of due process. satisfies the requirements that the statute we conclude on its face. is therefore valid Section 5463
C. Applied Section 5463 as to Adco
Adco claims that section 5463 authorized Caltrans unconstitutionally to it of without a Adco deprive property we that hearing. Although recognize billboard, a possesses interest in its Adco cannot com protectible property of an the be plain impermissible Because to a can deprivation. right hearing inferred from the of section language Adco’s failure to request after hearing notice that Caltrans intended to receiving remove its billboard is fatal to its constitutional challenge.1 Due the requires opportunity process heard, Connecticut, to be (Boddie rather than an actual hearing and, U.S. at 119]), L.Ed.2d at p. as we have the statute explained, afforded Adco impliedly such an in this case. opportunity
Conclusion judgment the Court of Appeal, finding invalid facially Adco, the ordering court to enter superior in judgment favor of is reversed. The Court of Appeal is directed to the reverse judgment court and superior to order that court to consider further on the proceedings issue whether Caltrans’s revocation of Adco’s was unlawful.
Mosk, J., Panelli, J., Arabian, J., Baxter, J., J., and George, concurred. KENNARD, J., Dissenting. The UnitedStates Constitution prohibits gov ernment from an individual of depriving without due property guarantee law. This means that before the government take it may property, must provide owner with a to a property right on the hearing proposed case, and advance notice of deprivation, In this hearing. majority billboard, holds the state seize and destroy the record although shows that the owner of the unequivocally billboard was never given any notice that he had a to a right hearing.
I dissent. Because billboard owner received no notice him informing that he was entitled to contest the state’s determination that his property notice, 11, 1986, language 1The dissent focuses on the of this dated June as the basis for its unconstitutionally view that failing provide adequate hearing Caltrans acted in notice of a note, however, We Adco. that the June 11 notice with began was but last a series that February original damaged. Caltrans’s letter to Adco in when Adco’s billboard had been We conclude that beginning February letters and other communications together, taken ending with the final notice of June provided notice to Adco ample that it was entitled challenge Caltrans’s intended removal of the billboard.
would be his constitutional to due was violated. destroyed, right States is of the United majority’s approach contrary controlling precedent Court, and its result is offensive to fundamental fairness. Supreme
Facts1 Traverso, owned Richard business as Adco Outdoor Advertising, doing “V” in The billboards were mounted on two billboards Cotati. off-premises were for billboards the structure. Permits first the granted type display (hereafter Caltrans) in and in California Department Transportation the billboards were classified as but legal nonconforming displays Act, Business and Professions Code section Advertising under Outdoor (hereafter Act).2 were be- nonconforming et The billboards seq. were located in an area zoned for business cause not they primarily fell due to causes the billboard structure down industry. February 10, 1984, sent to Traverso are Caltrans a letter February On disputed. unless he structure “has been removed” and that billboard stating is his would be canceled. It disputed within 30 responded days event, went ahead and canceled whether Traverso Caltrans responded; after valid for one ordinarily year, on Permits are 1984. permits April the next for a renewal for which and the owner must they lapse sign apply had they would have December Traverse’s expired year. permits the permits did not to renew attempt been cancelled Caltrans. Traverso or 1986. for 1985 thereafter, Shortly to rebuild the billboard. began
In June Traverso billboard, the owner on the citing notice placed on June Caltrans 1987, after communi- the Act. In August repeated for asserted violations of the display, Caltrans remove between began physically cations the parties, lawsuit, of section the constitutionality challenging Traverso filed this and and remove summarily claimed authority under which Caltrans the billboard structure. destroy order a preliminary restraining a temporary
The trial court issued later granted but display, from removing Caltrans enjoining injunction in a published Caltrans. Traverso appealed, for judgment summary in favor of court’s judgment reversed the trial the Court of Appeal opinion it fails to Caltrans, because is unconstitutional that section 5463 determining Appeal. Court opinion of the adapted from the 1This statement of facts is Code. and Professions statutory references are to the Business unlabeled 2All further *16 afford owners of advertising any for a when displays opportunity hearing Caltrans a removes billboard or revokes a for a billboard. permit This court then granted Caltrans’s for review. Enforcement of the order petition grant- ing summary judgment dissolving has been preliminary injunction resolution of on stayed pending this case appeal.
Discussion case, In this Caltrans under the proceeded of section which authority in provides, pertinent part:
“The director revoke license or for the failure to may any comply with the of this remove and provisions chapter may adver- destroy any or maintained in tising display placed violation of this after 10 chapter days’ written notice on such structure or and a forwarded posted sign mail copy to the owner at his display last known address.” [or her]
The concludes that billboard as well majority as billboard struc- permits tures are interests the due property protected I process guarantee. agree. The also concludes that section is not invalid majority on its face for failure to because court provide hearing, this hearing “imply” from the statute’s notice requirement I no view on this requirement. express because, it is question; to the resolution of this case unnecessary regardless of whether a be in hearing requirement may properly “implied” 5463, Caltrans acted to unconstitutionally failing notice provide adequate of a to hearing Traverso.
The relevant are well established. due an principles Although process individual under the Fourteenth Amendment to the United States Constitu- case, tion varies with the nature of the due at a procedural process requires, minimum, notice and an to be heard before a be opportunity person may of a interest. Cleveland Board permanently deprived property (E.g., of 503-504, Education v. Loudermill 470 U.S. L.Ed.2d 1487]; 105 S.Ct. v. Department Coleman Personnel Administration 52 Cal.3d 805 P.2d “An and fundamental of due elementary requirement calculated, circumstances, ... is notice under all the reasonably proceeding action and them an interested apprise parties pendency afford be such notice must present objections. their opportunity [Citations.] [citation], and it convey required as reasonably nature information interested to make their appearance a reasonable time for those must afford *17 306, (1950) U.S. 314 (Mullane Hanover Tr. Co. 339 v. Central [citations].” accord, 865, 873, added); (italics Memphis e.g., 70 S.Ct. L.Ed. 652] [94 1, 13, 22 L.Ed.2d (1978) 436 U.S. Water Division v. [56 Gas & Light, Craft 30, 41-42, 46-47, for S.Ct. 1554][holding public utility’s procedure 98 notice failed to inform due because service violated terminating terminations]; Municipal for Minor v. contesting of procedures customers 1541, [holding 1550-1551 (1990) Cal.Rptr. 919] Court 219 Cal.App.3d [268 set aside to statutory procedure that failed to inform claimant that notice (1984) 150 due v. Swink People of forfeiture violated process]; declaration 1076, [same]; see Brock v. Roadway Cal.Rptr. 290] Cal.App.3d [198 239, 251-252, 107 S.Ct. (1987) L.Ed.2d Inc. 481 U.S. Express, [95 case, to meet the court’s high to Traverso fails the notice provided this notice, B” in the trial court labeled as “Exhibit A copy requirements. reads, 11, 1986, It an to this dissent. is attached as and dated June appendix in pertinent part: violation of above is in that the described are notified display
“You hereby if no Act, and destroyed be removed and may the Outdoor Advertising avoid misunder- to To it is taken 7-17-86. prior toward legalizing action citation from Do not remove acknowledge comply promptly. standing, corrected.” violation has been this notice until or return display Traverso of calculated” “reasonably apprise notice was in this Nothing to consider” its complaint of an administrative procedure “the availability Gas & Water (Memphis Light, Caltrans by determination an erroneous 46-47]; see Petrillo at Division, L.Ed.2d pp. U.S. at p. [56 Dist. 197 Cal.App.3d [243 Transit Rapid Area Bay choice had Indeed, that Traverso notice indicated 74]). in the nothing “correct” the demands to bureaucracy’s with the comply other than removed and as Caltrans violations, watch idly stand alleged billboard. his destroyed footnote, claiming this dissent by the majority responds
In a Caltrans clause was satisfied because of the due process notice requirement with Traverso before and other communications” “letters had exchanged 11, 1986, notice of June and thus Traverso had received all the notice to ante, which he was constitutionally entitled. (Maj. 1.) at opn., p. fn. First, is majority’s argument defective in two none elementary ways. of the communications before or after June informed Traverso that he had the ato as the right hearing, court has high consistently required. (Mullane Co., v. Central Hanover Tr. at supra, 339 U.S. at p. L.Ed. 873]; Memphis Gas & Water Light, Division v. Craft, supra, 436 U.S. at Second, pp. 46-47].) L.Ed.2d at pp. as this court has made clear, in unequivocally due assessing procedural “we process challenge, must look to the ordinance, dictated the terms of the procedure and not to *18 informal at practices the discretion of implemented [government] adminis- trators. . . . ““It is not that the enough owners chance may have had notice, or that they as a matter of favor have a The law hearing. must them, notice to them a require to a give and an right hearing, opportunity ” ’ to be heard.’ (Kash Inc. Enterprises, Los City Angeles [Citations.]” 294, 307, 19 Cal.3d fn. 7 1302].) 562 P.2d for Fortunately owners this property United country, States Su- Court has preme adhered consistently to the that requirement government provide owners notice of property their to be heard before opportunity it them of their deprives (See, property. United e.g., States v. James Daniel Good Real Property (1993)_U.S._[126 L.Ed.2d 492].) 114 S.Ct. Traverso, for Unfortunately this court has denied him the unaccountably notice right that he could adequate contest the state’s determination that his billboard was in violation of the Act.
“The of notice under purpose the Due Process Clause is apprise to. of, affected individual for, and permit an adequate preparation impending ” Division, ‘hearing.’ (Memphis Gas & Water Light, supra, 436 U.S. at 14p. L.Ed.2d at The notice that Traverso received denied him due it process because failed to serve that purpose.
Conclusion clause, Under the majority’s interpretation of the due process government notice to owner that property his or is about to be her seized and property satisfies federal if the destroyed even owner is property Constitution never informed he or she has the heard on the to be right legality An of fairness. This violates basic opportu- action. principles
government’s who, heard, alone, owners of little value to is standing property to be nity will Traverso, it when a has announced they learn about court like only were the hearing they failed demand lose their because they property never have. informed could they
I of Appeal. would affirm the of the Court judgment was for a denied rehearing both respondent appellant petition to read as above. March and the was modified printed opinion Kennard, J., should be granted. was of the opinion petition