Administrative Review of Notices to Remove Outdoor Advertising and to Terminate Nonconforming Signs

PURPOSE: This rule provides a uniform procedure for administrative review of notices to remove outdoor advertising issued by the State Highway Commission under section 226.580, RSMo. (1) Request for Administrative Review. Any person given a notice to remove outdoor advertising under section 226.580, RSMo, by the department’s authorized representative will be entitled to an administrative hearing under Chapter 536, RSMo, by filing a written request for hearing with the Secretary of the Missouri Highways and Transportation Commission, PO Box 270, Jefferson City, MO 65102. This request for hearing must be received by the commission secretary within sixty (60) days after receipt of the notice to remove outdoor advertising by the applicant and must be sufficient to identify the person(s) requesting the hearing and the outdoor advertising structure for which the hearing is requested. No answer or other response by the commission is necessary. Upon receipt of the request for hearing, the commission secretary will forward the request to the hearing examiner for the commission. (2) Authority to Dismiss Request for Administrative Review. The hearing examiner is authorized to dismiss any request for administrative review and terminate any further proceedings for the following reason: (A) When the notice to remove outdoor advertising or notice to terminate a nonconforming sign has been withdrawn under 7 CSR 10-6.080(4); (B) When the applicant has withdrawn the request for administrative review. The applicant will submit the withdrawal request in writing to the hearing examiner; or (C) When the applicant fails to appear at the time and place for a hearing as scheduled under section (4) of this rule. (3) Bias. If the hearing examiner determines at any stage of the proceeding that s/he has prior knowledge of specific facts of a case that s/he deems would prevent her/him from Transportation Commission rendering an objective report and order to the commission, s/he will immediately cease to act and the commission will provide an alternate hearing examiner. (4) Notice of Hearing. The hearing examiner will give written notice of hearing to the applicant and department’s authorized representative fixing a time and place for a hearing, at which time the applicant and department’s authorized representative may appear and present evidence. The hearing examiner will issue this notice not less than fifteen (15) days prior to the date fixed for hearing. In instances where more than one (1) request for hearing is received from the same person, the hearing examiner may consolidate those hearings in the interest of economy. (5) Legal Representation. After the request for administrative review is filed with the commission secretary, no person may sign any pleading or brief or appear at any administrative hearing as a legal representative of a corporation, partnership, or another individual unless this person is a licensed attorney in good standing in Missouri. (6) Discovery. Any party may take and use depositions under section 536.073, RSMo. The hearing examiner will rule on all matters concerning discovery. (7) Subpoenas. Witnesses may be summoned to appear to give testimony or to give testimony and produce documents at the hearing by a subpoena issued by the hearing examiner, the secretary to the commission, or by a notary public at the request of any party. (8) Continuances. Any hearing that is scheduled by the hearing examiner may be continued at the discretion of the hearing examiner pursuant to Supreme Court Rule 65. (9) Evidence, Argument, and Briefs. The sole issue in a hearing is whether or not a particular sign is an unlawful sign under section 226.580, RSMo or is being maintained in violation of the rules for maintenance of nonconforming signs under 7 CSR 10-6.060. The department will present its evidence first at the hearing in support of its notice to remove outdoor advertising or notice to terminate nonconforming sign. After the department presents its evidence, the applicant may present evidence. Any party has the right of cross-examination. Oral or written evidence must be received in the record to be considered by the commission in reaching its final decision. Any party is entitled to present oral argument at the hearing. If oral argument is presented, it will be preserved and transcribed in the record for the use of the commission in reaching a final decision. Any party may file a written brief or the hearing examiner may require written briefs to be filed within the time set by the hearing examiner for the use of the commission in reaching a final decision. The hearing examiner may rule on all objections and motions to facilitate submission of the case to the commission for its final decision. (10) Transcript. At the conclusion of the hearing, the hearing examiner will cause the entire record to be transcribed in sufficient quantities that the original may remain a permanent part of the record. Any party may obtain a copy of the record at the party’s expense. (11) Report and Order. As soon as practical after receipt of the transcript and briefs of the parties, if any, the hearing examiner submits to each member of the commission a suggested report and order for consideration by the commission. (12) Final Decision. The members of the commission will render a final decision. If briefs or oral arguments are submitted, the members of the commission, in lieu of reading the entire record, may consider those portions of the record cited or referred to in the arguments or briefs to arrive at a final decision. The commission will render its final decision in writing supported by competent and substantial evidence upon the whole record subject to judicial review under section 536.100, RSMo. AUTHORITY: sections 226.150, and 226.500– 226.600, RSMo 2016 and RSMo Supp. 2017.* Original rule filed May 16, 1977, effective Oct. 15, 1977. Amended: Filed Jan. 16, 1990, effective June 11, 1990. Amended: Filed June 15, 1993, effective Jan. 31, 1994. Amended: Filed April 15, 2003, effective Nov. 30, 2003. Amended: Filed Oct. 3, 2013, effective May 30, 2014. Amended: Filed Sept. 8, 2017, effective April 30, 2018. *Original authority: 226.150, RSMo 1939, amended 1977 and 226.500–226.600, see Missouri Revised Statutes 2016 and Supp. 2017.