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Gibson v. Dep't of Revenue

Colorado Court of Appeals. Division II
May 5, 1977
566 P.2d 1086 (Colo. App. 1977)

Opinion

No. 76-788

Decided May 5, 1977. Rehearing denied May 26, 1977. Certiorari denied July 18, 1977.

From judgment upholding revenue department's revocation of his driver's license, plaintiff appealed.

Affirmed

1. DRIVING UNDER THE INFLUENCERevocation of Driver's License — Challenged — Absence of Finding — Properly Constituted — District Office — Order To Appear — Obviated — Need for Express Finding. Where driver challenged the revocation of his driver's license on the basis that hearing officer had failed to make an express finding that the office holding the hearing was a properly constituted district office of the Department of Revenue, the act of the department in ordering the driver to appear at the district office of the department in Denver was an assertion by it that there was the properly constituted District Office in Denver, and that assertion obviated the need for an express finding on this issue.

2. Statutory Designation — Location for Hearing — Implied Consent Violation — Matter of Venue — Not Jurisdiction. Provision of the implied consent statute that designates the appropriate location for the holding of a license revocation hearing, is a matter of venue, rather than jurisdiction.

3. Failure of Driver — Raise Issue — Proper Location — For Hearing — Waiver — Objections to Venue. The failure of driver in license revocation hearing to raise the issue before the hearing officer as to the proper location for the hearing to be held, constituted a waiver of any objections to venue.

Appeal from the District Court of the County of Arapahoe, Honorable Richard D. Greene, Judge.

Galligan Foley, Gerald H. Galligan, Richard B. Foley, for petitioner-appellant.

J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward E. Donovan, Assistant Attorney General, Arthur G. Staliwe, Assistant Attorney General, for respondent-appellee.


Petitioner, James Gibson, appeals a judgment upholding the revocation of his driver's license. We affirm.

Petitioner's sole contention on appeal is that the revocation order is void because the hearing officer failed to make express findings of the following allegedly jurisdictional facts: (1) That the office holding the hearing was a properly constituted district office of the Department of Revenue, and (2) that the hearing was held at the district office closest to the residence of the petitioner or, in the alternative, at the office closest to the location of petitioner's arrest. Neither of these arguments was presented to the hearing officer, and petitioner does not assert on appeal that the district office was not properly constituted, or that the hearing was held in the wrong place. Therefore, petitioner's argument goes solely to the need for findings on these issues. We find no necessity for such findings.

[1] As to the first of these allegedly jurisdictional facts, the act of the Department in ordering petitioner to appear at the district office of the Department in Denver was an assertion by it that there was a properly constituted district office in Denver, and obviated the need for an express finding on this issue. See Consolidated Flour Mills Co. v. Kansas Gas Electric Co., 119 Kan. 47, 237 P. 1037.

As to the second, we conclude that the issue of the proper location of the hearing is not jurisdictional, and determine, moreover, that the issue was waived by petitioner at the hearing, thereby obviating a need for a finding on this issue.

The statute governing an implied consent hearing, § 42-4-1202(3)(e), C.R.S. 1973, states in part: "The hearings held by the department . . . shall be at the district office of the department nearest the jurisdiction wherein the person was arrested."

Not all statutes relating to administrative authority to act are jurisdictional, and it is the legislative intent behind the statute which is determinative. See Ball v. Industrial Commission, 30 Colo. App. 583, 503 P.2d 1040 (statute of limitations pertaining to agency action is not jurisdictional).

In attempting to ascertain if the legislature intended to make the location of the hearing jurisdictional, we find guidance in § 24-4-105(2), C.R.S. 1973, which is the general procedural statute for administrative hearings. That statute provides:

"In fixing the time and place for a hearing, due regard shall be had for the convenience and necessity of the parties . . . ."

This language reveals a legislative intent to provide the parties with a convenient forum for the hearing, and we interpret the location provision in § 42-4-1202(3)(e), C.R.S. 1973, as merely being designed to effectuate this intent.

[2] The judicial doctrine of venue is also grounded in providing the parties with a convenient forum to adjudicate the controversy. Alamida v. Wilson, 53 Hawaii 398, 495 P.2d 585. Accordingly, in light of the underlying legislative intent, we construe the location provision of the implied consent statute to be a matter of venue, which deals with the proper place for the agency to hear the controversy, rather than jurisdiction, which goes to the fundamental power of the agency to determine the controversy. See In re Estate of Owens, 89 N.M. 420, 553 P.2d 700.

[3] Venue, unlike jurisdiction, can be waived, and the failure to raise the issue before the hearing officer is deemed to act as a waiver of any objections to venue. In re the Application for Water Rights of the Fort Lyon Canal Co., 184 Colo. 219, 519 P.2d 954.

Since the Department had jurisdiction to hear the controversy, and since the issue of venue was waived, venue was proper as a matter of law, and the absence of a finding as to venue did not affect the validity of the revocation order.

Judgment affirmed.

CHIEF JUDGE SILVERSTEIN and JUDGE RULAND concur.


Summaries of

Gibson v. Dep't of Revenue

Colorado Court of Appeals. Division II
May 5, 1977
566 P.2d 1086 (Colo. App. 1977)
Case details for

Gibson v. Dep't of Revenue

Case Details

Full title:James Williams Gibson v. Department of Revenue of the State of Colorado

Court:Colorado Court of Appeals. Division II

Date published: May 5, 1977

Citations

566 P.2d 1086 (Colo. App. 1977)
566 P.2d 1086

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