State, ex rel. Casey Outdoor Advertising, Inc., v. Ohio Dept. of Transp., 90-551

• Decision Date: 14 August 1991
• Docket Number: No. 90-551,90-551
• Citation: 575 N.E.2d 181,61 Ohio St.3d 429
• Parties: The STATE, ex rel. CASEY OUTDOOR ADVERTISING, INC., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Ohio Supreme Court

Page 429

61 Ohio St.3d 429

575 N.E.2d 181

The STATE, ex rel. CASEY OUTDOOR ADVERTISING, INC., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee.

No. 90-551.

Supreme Court of Ohio.

Submitted May 21, 1991.

Decided Aug. 14, 1991.

Relator, Casey Outdoor Advertising, Inc. ("Casey"), is an Ohio corporation engaged in the business of outdoor advertising. The cities of Toledo and Oregon are home rule municipalities which have adopted city charters and enacted municipal ordinances regulating outdoor advertising.

R.C. 715.27 allows any municipal corporation to regulate the erection, removal and repair of billboards and signs within a municipal corporation. Ohio Adm.Code 5501:2-2-03, known as the ramp spacing requirement, prohibits any advertising device from being erected within five hundred feet of an interchange.

Casey had submitted multiple applications for permits for outdoor advertising in Toledo and Oregon. Respondent, Ohio Department of Transportation ("ODOT"), rejected these applications based on a perceived violation of the ramp spacing requirement.

Casey did not pursue administrative remedies but instead sought a writ of mandamus from the Court of Appeals for Franklin County ordering ODOT to approve the applications for billboard permits. Casey contended that the regulation of outdoor advertising within a municipality was the exclusive responsibility of the municipality, and that the application of the Ohio Administrative Code violated the home rule provisions of the Ohio Constitution. ODOT asserted that Casey failed to exhaust its remedies, and that it had an adequate remedy at law. The court, adopting the referee's finding of fact and report, denied the writ because Casey had an adequate remedy at law by appeal under R.C. 119.12.

This case is before this court upon an appeal as of right.

Schnorf, Schnorf & Ballard, David M. Schnorf and Christopher F. Parker, Toledo, for appellant.

Lee I. Fisher, Atty. Gen., Ronald H. Snyder and Nino A. Sferrella, for appellee.

PER CURIAM.

The issue presented is whether the court of appeals, in refusing to issue the writ, abused its discretion.

State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, is dispositive. Paragraph three of the syllabus reads as follows:

"When a petition stating a proper cause of action in mandamus is filed originally in the Supreme Court or in the Court of Appeals, and it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, neither the Supreme Court nor the Court of Appeals has authority to exercise jurisdictional discretion but those courts are required to deny the writ. * * * " The court of appeals, finding that Casey had a plain and adequate remedy in the ordinary course of the law, denied the writ of mandamus. We affirm.

In State, ex rel. Oliver, v. State Civil Service Comm. (1959), 168 Ohio St. 445, 446, 7 O.O.2d 275, 155 N.E.2d 897, 898, wherein relator contended that an order of the State Civil Service Commission was arbitrary, unreasonable and an abuse of discretion, we held:

"The respondent Civil Service Commission is an 'agency' as defined by Section 119.01, Revised Code, and its orders are appealable to the Court of Common Pleas under authority of Section 119.12, Revised Code, providing in part that 'any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the Court of Common Pleas of Franklin County.' Relator did not prosecute such an appeal."

R.C. 119.12 provides, in pertinent part:

"Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination, or denying the issuance or renewal of a license * * * may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident * * *."

Applying the above to this case, ODOT is an "agency" and its orders are appealable to common pleas court. Casey was "adversely affected" and should have taken such an appeal.

Nevertheless, Casey, being cognizant of the adequacy-of-remedy impediment to relief, argues that: "A party does not have to exhaust administrative remedies to obtain a writ of mandamus if resort to the administrative remedies would be wholly futile, a vain act or onerous or unusually...