South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Marlin Outdoor Advertising, Ltd. vs. DOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioner:
Marlin Outdoor Advertising, Ltd.

Respondent:
South Carolina Department of Transportation
 
DOCKET NUMBER:
02-ALJ-19-0307-CC

APPEARANCES:
For the Petitioner:
Robert Mathison, Jr.

For the Respondent:
Barbara Wessinger
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This case is before me pursuant to the request of Petitioner, Marlin Outdoor Advertising, Ltd. (“Marlin”), for a contested case hearing regarding the decision of the Respondent, South Carolina Department of Transportation (“DOT”), to cancel three of Marlin’s outdoor advertising permits, permit numbers 02-36-164310, 02-36-164311, and 02-36-164312. DOT made its decision to cancel the three permits on the basis that the qualifying activity is a transient or temporary activity and is a sham pursuant to S.C. Code Ann. § 57-25-120(5)(e) and (i) (Supp. 2002) and 25A S.C. Code Ann. Regs. 63-342(U) and (CC)(1) (Supp. 2002). I agree and affirm the decision of DOT.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:

1. Notice of the time, date, place, and subject matter of the hearing was given to all parties in a timely manner.

2. Marlin is a company which owns approximately 300 billboards in the State of South Carolina. The sole owner of the company is Walter Czura.


3. In or around February 2001, Marlin hired Broad River Construction to clear an area of land along I-26 in Newberry County which Marlin wanted to purchase for the purpose of erecting billboards. At that time, the land was owned by Johnnie Morris. While Broad River Construction was working on clearing the land, a deal was struck between Jimmy Leitzey, the owner of Broad River Construction, and Mr. Czura. The two parties agreed that Marlin would place a building on the land which it would allow Broad River Construction to use as an office, at no charge, for a period of one year. Marlin agreed to place a sign in front of the building, facing the interstate, with Broad River Construction’s name and telephone number. Marlin also agreed to pay the salary of a secretary to work in the office for Broad River Construction for that one-year period. In return, Broad River Construction agreed that, at the end of the one-year period, it would rent the billboard faces on the land from Marlin. On May 9, 2001, Marlin applied for three outdoor advertising permits for the cleared area, with Mr. Morris’s permission. Marlin listed Mr. Czura as the owner of the land on the permit applications, although Mr. Czura did not actually purchase the land from Mr. Morris until June 27, 2001.

4. At the time in question, the subject land was located in an unzoned commercial area. In order to obtain the outdoor advertising permits, Marlin was required to show that a qualifying business was located within 600 feet of the proposed sign sites. Marlin identified Broad River Construction as the qualifying business on all three applications. Marlin submitted another document describing the building it intended to place on the land as “a portable metal [building] that will be there approx. 12 [months].” The portable building was placed on the site to serve as Broad River Construction’s office. According to the documentation submitted with the applications, the hours of operation for Broad River Construction’s office were 8:00 a.m. to 5:00 p.m. on Monday through Thursday. DOT employee Karl Hoffman conducted an investigation of the sign sites and qualifying business, and he recommended approval of the three permits. DOT approved the three applications on June 19, 2001.

5. A secretary, Loretta Frick, was employed to work in the portable building during Broad River Construction’s purported office hours, answering the telephone and relaying any messages to Mr. Leitzey. Although Ms. Frick worked for Broad River Construction, her salary of $150 per week for a 36-hour work-week was paid by Marlin. Mr. Leitzey neither paid Ms. Frick’s salary nor monitored her time sheets or the hours that she worked.


6. Mr. Leitzey testified that he used the office owned by Marlin mainly for advertising and exposure. He stated that he got the advertising and exposure he wanted by simply having the name and phone number of his company on the sign next to the building, which is visible from I-26. Mr. Leitzey testified that he was not directly impacted by whether or not Ms. Frick was actually in the portable office building. If Ms. Frick wasn’t in the office, nobody answered the phone; however, Mr. Leitzey testified that he received telephone messages from Ms. Frick only sporadically, maybe one or two in a week, followed by a week in which he received no messages from her. Most of his job referrals did not come from messages relayed by Ms. Frick. Mr. Leitzey did not keep up with what days or hours Ms. Frick worked. He testified that his work was usually conducted at job sites, and any office work he needed to do he usually did at home. Thus, the portable office building was not used much if Ms. Frick was not there. No one hired a replacement for Ms. Frick when she got sick or when she was otherwise absent. Mr. Leitzey testified that he would not have put an office at this location but for Marlin fronting the cost.


7. From approximately March 12, 2002 until June 19, 2002, during the first year of the subject permits, DOT employee Karl Hoffman conducted an investigation of the sign sites and qualifying business to ensure that they complied with the requirements of the Highway Advertising Control Act, particularly the provisions prohibiting sham businesses. Mr. Hoffman visited the qualifying business approximately 26 times during that period during the business’s purported hours of operation. According to Marlin’s applications, the business was supposed to be open from 8:00 a.m. to 5:00 p.m. on Monday through Thursday, which adds up to 36 hours per week. On 12 of Mr. Hoffman’s visits he found Ms. Frick sitting at a desk inside the office. However, on 14 of those occasions he found no one at the business and a padlock on the outside of the door. According to Mr. Hoffman’s documentation of his investigation, a report entitled “Qualifying Business Review,” the office was closed and padlocked, with no one inside, on the following occasions: March 14, 2002, at 9:50 a.m.; March 20, 2002, at 11:15 a.m.; March 28, 2002, at 10:55 a.m.; April 3, 2002, at 10:45 a.m.; April 8, 2002, at 9:08 a.m.; April 10, 2002, at 11:10 a.m.; April 18, 2002, at 9:05 a.m.; April 29, 2002, at 9:55 a.m.; May 1, 2002, at 1:40 p.m.; May 6, 2002, at 11:15 a.m.; May 9, 2002, at 11:55 a.m.; May 30, 2002, at 10:45 a.m.; June 4, 2002, at 9:50 a.m.; and June 5, 2002, at 8:40 a.m. Mr. Hoffman’s notes indicate that on two of these occasions, March 20, 2002 and April 3, 2002, the business was closed due to vacation. On one occasion, May 1, 2002, there was a note on the door indicating that Ms. Frick had gone to pick up her son and would return. Mr. Hoffman’s notes further indicate that Ms. Frick had called Mr. Hoffman’s office to either speak with him or leave him a message that she would be absent for either personal reasons or due to illness on four occasions, April 29, 2002, May 6, 2002, May 9, 2002, and June 4, 2002. Mr. Hoffman testified that on none of those occasions did he give her permission to leave work or indicate that her absence would be excused by DOT. Based on my review of the evidence submitted through Mr. Hoffman’s testimony and by the introduction into evidence of Mr. Hoffman’s “Qualifying Business Review,” I find that on at least nine separate weeks before the permits were revoked the business could not have been open to the public with an employee on site conducting meaningful business for a total of 36 hours the entire week. Thus, the business was not open, nor would it have been possible for it to be open had the permits not been revoked, for at least 36 hours per week for at least 48 weeks out of the 52-week calendar year following the date the permits were issued.

8. Keith Melvin, DOT’s Director of Outdoor Advertising, wrote a letter to Marlin on May 30, 2002, notifying Marlin that DOT was cancelling its three permits. He made this decision based upon dates the business was reported padlocked, with no one inside, during the first year Marlin was permitted at the subject location. Mr. Melvin relied on the information he received from Mr. Hoffman, who was under his supervision, regarding dates the business was padlocked and empty. Mr. Melvin kept track of the days the business was reported closed to him by Mr. Hoffman in a calendar which chronicled the business’s first permitted year, from June 2001 to June 2002. Based on the information he recorded in that calendar, Mr. Melvin decided that the business did not have an employee on the premises, conducting meaningful work, for the requisite minimum of 36 hours per week for at least 48 weeks of the year. He therefore decided to revoke the permits on the ground that the business was transient or temporary and was a sham.


9. At the hearing before the ALJD, Ms. Frick testified that she kept her own record of the days she worked for Broad River Construction in her personal calendar. Marlin submitted Ms. Frick’s calendar at the hearing as evidence of the number of hours Ms. Frick worked. Ms. Frick claimed that she marked an “X” in her calendar on each day that she worked, and that most of the days marked with an “X” were days she worked a nine-hour day. However, some of the days marked with an “X” in the calendar also have notations on them indicating that Ms. Frick was either sick, came in late, had a doctor’s appointment, or had car trouble. Those notations do not indicate the amount of time Ms. Frick was actually out of the office for the stated reasons. Ms. Frick testified that she would sometimes leave work during the day to pick her son up from school and drive him home, or to go get something to eat for lunch, and that she was sometimes late to work; thus, she admitted that some weeks she was not in the office for a total of 36 hours. When asked about some discrepancies in her calendar, such as the fact that she marked several Sundays with an “X” even though she testified that she never worked on Sundays, Ms. Frick admitted that she may have sometimes marked the wrong day on the calendar unintentionally. She also testified that she may have marked an “X” on the calendar on some days, such as Fridays[1], when she came into the office for only a short time and did not actually work a full day. Based on this testimony, and on my own review of the calendar, I find that the calendar is not credible or reliable evidence of the number of hours Ms. Frick worked at the Broad River Construction office.

10. Ms. Frick also testified that no one came into the office to replace her when she was out of the office. She further testified that she padlocked the door to the office whenever she left the office, even if she left during the middle of a regular work-day. Thus, I find that the business was essentially closed, with no employee on the premises doing any meaningful work, during the times Ms. Frick was not in the office.


11. Ms. Frick testified that she contacted Mr. Hoffman on some days when she was either sick or when she knew she was going to be late to work, and that Mr. Hoffman always said “okay.” Ms. Frick admitted that Mr. Hoffman never said anything more than just “okay,” but she testified that she interpreted Mr. Hoffman’s remark to mean that she had his permission to be absent from work on those occasions. Similarly, Mr. Czura testified that, although he did not monitor Ms. Frick’s hours, he believed that she always called Mr. Hoffman and got permission from him to leave work on days when she was absent from or late to work. However, Mr. Hoffman was not Ms. Frick’s employer. Further, Mr. Hoffman testified that he never gave Ms. Frick permission to leave work and never told her or Mr. Czura that he was waiving DOT’s 36-hour-per-week requirement. He stated that he did receive some telephone messages from Ms. Frick, and spoke to her on the telephone a couple of times, in which she informed him that she was sick and was going to be out of the office, but that he never said anything to lead her to believe that DOT would excuse her absence and deviate from the 36-hour requirement.

CONCLUSIONS OF LAW

Based upon the above findings of fact, I conclude the following as a matter of law:

1. The Declaration of Purpose of the Highway Advertising Control Act (“the Act”) specifically states that the South Carolina General Assembly found that outdoor advertising is “a business which must be allowed to exist and operate where other business and commercial activities are conducted . . . .” S.C. Code Ann. § 57‑25‑130 (Supp. 2002) (emphasis added). The Act provides that DOT is the agency responsible for issuing outdoor advertising sign permits and for prescribing regulations for their issuance. S.C. Code Ann. § 57‑25‑150(A) (Supp. 2002).

2. S.C. Code Ann. § 57‑25‑140 (A) (Supp. 2002) provides that:

[a]n outdoor advertising sign must not be erected or maintained after June 30, 1975, which is visible from the main‑traveled way of the interstate or federal‑aid primary highways in this State and erected with the purpose of its message being read from the traveled way, except the following: . . . (8) signs located in unzoned commercial or industrial areas.

An unzoned commercial or industrial area is defined by the Act as “the land occupied by the regularly used building, parking lot, and storage and processing area of a commercial, business, or industrial activity and land within six hundred feet of it on both sides of the highway.” S.C. Code Ann. § 57-25-120(4) (Supp. 2002). Commercial or industrial activities are further defined by the Act as “those established activities generally recognized as commercial or industrial by zoning authorities within the State, except that none of the following are considered commercial or industrial activities: . . . (e) transient or temporary activities; . . . (i) sham, prohibited, or illegal activities; . . . .” S.C. Code Ann. § 57-25-120(5) (Supp. 2002).


3. According to the Regulations promulgated by DOT, an activity is considered transient or temporary if it does not have “at least one employee attendant at the activity site, performing meaningful work and available to the public for at least thirty-six (36) hours per week on at least four (4) days per week for at least forty-eight (48) weeks per year.” 25A S.C. Code Ann. Regs. 63-342(CC)(1) (Supp. 2002).

As defined in the Regulations promulgated by DOT,

Sham activity, means any activity which is seemingly a commercial or industrial activity but which was created primarily or exclusively to qualify an area as an unzoned commercial or industrial area and which does not conduct any meaningful business at the activity site. Failure of an activity to maintain the standards set forth under the definition of transient and temporary within one year after a sign permit was issued based on the activity qualifying the sign site as an unzoned commercial or industrial area shall be prima facie evidence that the activity was a sham.

25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002).

According to 25A S.C. Code Ann. Regs. 63‑344 (G) (Supp. 2002):

Any sign permitted because of an activity subsequently determined to be a sham activity shall be illegal and must be removed at the sign owner’s or landowner’s expense. Until the sign supported by the sham activity is completely removed from its site, the Department may not approve any application for any sign permit made by the sign owner. Also, the Department may not approve any other application for a sign permit on any site owned or controlled by the landowner of the property on which the sham activity is located.

4. “The term ‘prima facie evidence’ denotes evidence which, if unexplained or uncontradicted, is sufficient [to find] in favor of the issue which it supports, but which may be contradicted by other evidence. Stated otherwise, prima facie evidence means evidence which is sufficient to establish the fact, unless rebutted; evidence which, standing alone and unexplained, would maintain the proposition for which it is introduced.” 29 Am. Jur. Evidence § 4 (1994); see also Black’s Law Dictionary 1189 (6th ed. 1990) (“Prima facie‑‑ At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.”). Once a party establishes a prima facie case, the burden shifts to the opposing party to disprove the proposition established by the prima facie case. McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 479 S.E. 2d 67 (Ct. App. 1996).


As set forth above, the purpose of the Act is to ensure that outdoor advertising structures are only erected where legitimate businesses and commercial activities are conducted. In order to satisfy that intended purpose, DOT Regulations define a qualifying business as a “sham activity” if it is “seemingly a commercial or industrial activity but which was created primarily or exclusively to qualify an area as an unzoned commercial or industrial area and which does not conduct any meaningful business at the activity site.” 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002). “Words used in a statute should be taken in their ordinary and popular significance unless there is something in the statute requiring a different interpretation.” Santee Cooper Resort v. S.C. Pub. Serv. Comm’n, 298 S.C. 179, 184, 379 S.E. 2d 119, 122 (1989). “And” is defined in Black’s Law Dictionary as “[a] conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first.” Black’s Law Dictionary 86 (6th ed. 1990). Therefore, 25A S.C. Code Ann. Regs. 63‑342(U) (Supp. 2002) establishes a two-prong test to determine if a business is a “sham activity” seeking to qualify for a permit, both prongs of which must be established. In other words, the evidence must prove that the qualifying business was not only established “primarily or exclusively to qualify an area as an unzoned commercial or industrial area” but also that the business did not “conduct any meaningful business at the activity site.”


5. In this case, DOT presented evidence that Marlin’s qualifying business, Broad River Construction, was a transient or temporary activity within the meaning of 25A S.C. Code Ann. Regs. 63-342(CC)(1) (Supp. 2002). According to documentation submitted to DOT, the business was supposed to be open from 8:00 a.m. to 5:00 p.m. Monday through Thursday. That adds up to 36 hours per week, the minimum required under the Regulation. Mr. Hoffman visited the business approximately two times a week, during the hours it reported itself to be conducting business, over the course of a four-month period. From March 12, 2002 to June 19, 2002, Mr. Hoffman visited the qualifying business twenty-six times, and the business was closed, with no employee on the site, on fourteen of those occasions. On nine separate weeks during that four-month period Mr. Hoffman found the business to be closed during at least one of his two weekly visits, and sometimes during both of his weekly visits. Thus, the evidence submitted by DOT establishes that the Broad River Construction office at the site of the billboards was “transient or temporary” according to the definition provided by 25A S.C. Code Ann. Regs. 63-342(CC)(1) (Supp. 2002). Proof that Marlin’s qualifying activity was a “transient or temporary” activity within one year after the issuance of the permits establishes a prima facie case that the business was a “sham activity.” 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002). Consequently, the burden shifted to Marlin to prove that the qualifying business was not a “sham activity.”

6. Marlin presented as evidence of the number of hours an employee was at the qualifying activity site a calendar belonging to Ms. Frick. As discussed above in the findings of fact, I find that this calendar is not credible or reliable evidence of the number of hours Ms. Frick worked. Marlin further argued that Ms. Frick’s absences were all excused by Mr. Hoffman on behalf of DOT, and that DOT should thus be estopped from claiming that the qualifying activity is a sham or a transient or temporary activity. However, I find that Marlin failed to establish that Mr. Hoffman purported to excuse any of Ms. Frick’s absences. The direct testimony of Marlin’s own witness, Ms. Frick, established only that Mr. Hoffman said the word “okay” after she told him on the phone that she was going to be late to or absent from work on a few occasions. That testimony does not establish that Mr. Hoffman actually excused Ms. Frick, Broad River Construction, or Marlin from meeting the 36-hour per week requirement. Even if Mr. Hoffman’s words could have been interpreted by Ms. Frick as permission for her to deviate from the 36-hour work-week prescribed by DOT Regulations, Mr. Hoffman did not have authority to waive the 36-hour work-week requirement. DOT cannot be estopped by the unauthorized or erroneous statements of one of its agents which have been relied upon by a third party. Goodwine v. Dorchester Dep’t of Soc. Servs., 336 S.C. 413, 419, 519 S.E.2d 116, 118-19 (Ct. App. 1999). The doctrine of estoppel “will not be applied to deprive the State of the due exercise of its police power or to thwart its application of public policy.” Id. at 418, 519 S.E.2d at 118. Thus, Marlin failed to present reliable evidence establishing, in contradiction to DOT’s evidence, that Ms. Frick was on the site and the business open at least 36 hours per week for 48 weeks out of the calendar year. Therefore, I find that Marlin’s qualifying business was a “transient or temporary” business as defined by 25A S.C. Code Ann. Regs. 63-342(CC)(1) (Supp. 2002), and that the site at issue does not qualify as an unzoned commercial or industrial area under the definitions provided in S.C. Code Ann. § 57-25-120(4) and (5)(e) (Supp. 2002).


7. Furthermore, DOT sufficiently proved that both prongs of the definition of “sham activity” are met in this case. The evidence presented by DOT shows that Marlin placed a portable metal building on the site with the intention that the portable building would remain on the site for only twelve months. Marlin fronted the costs to Broad River Construction to have a secretary in the portable office building for a period of only one year, even though the owner of Broad River Construction testified that having the secretary there did not impact his business. It is clear that Marlin placed the building on the site and paid Ms. Frick’s salary solely for the purpose of qualifying the area where his signs were located as an unzoned commercial or industrial area. Marlin introduced no credible evidence to show otherwise.

Additionally, DOT proved that Broad River Construction conducted no meaningful business at the activity site. The sole employee on the site, Ms. Frick, was in the office solely to answer the phone and relay messages to Mr. Leitzey. However, Mr. Leitzey’s testimony revealed that he only received messages from Ms. Frick sporadically. More importantly, Mr. Leitzey testified that whether or not Ms. Frick was at the office site did not impact his business. Mr. Leitzey did not use the office himself to conduct any office work; he continued to do all of his office work at home, as he did before he entered into the deal with Marlin. Based on this evidence, I conclude that no work meaningful to Broad River Construction was conducted at the office site. Marlin introduced no credible evidence to show otherwise.

The two prongs of the definition provided in 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002) of a “sham activity” are satisfied in this case, and the site at issue does not qualify as an unzoned commercial or industrial area under the definitions provided in S.C. Code Ann. § 57-25-120(4) and (5)(i) (Supp. 2002).

7. Broad River Construction is a temporary or transient activity and a sham activity under the Act, which requires the cancellation of the outdoor advertising permit and complete, immediate removal of the sign structures, including the removal of the foundations, at Marlin’s expense. Furthermore, DOT is prohibited from approving any other sign permit applications for Marlin, or any sign permit applications for signs to be located on land owned by Mr. Czura, statewide, until the signs are completely removed from this location.


8. At the hearing, Marlin argued that 25A S.C. Code Ann. Regs. 63-342(U) and (CC)(1) (Supp. 2002) violate the due process clause and may constitute an unlawful taking. In Video Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000), the South Carolina Supreme Court held that Administrative Law Judges lack the authority to rule upon the constitutionality of a statute or regulation. These “constitutional issues may be raised, but not ruled upon, in the administrative proceedings.” Id. at 39, 535 S.E.2d at 645. Therefore, this tribunal makes no ruling as to the constitutional issues raised by Marlin.

9. Marlin also argued that DOT exceeded its statutory authority in promulgating 25A S.C. Code Ann. Regs. 63-342(U) and (CC)(1) (Supp. 2002). Marlin argued that the definitions of “sham” and “transient or temporary” set forth in those Regulations contradict the intention of the General Assembly in creating the Act, and that DOT improperly bootstrapped the definition of “temporary or transient” to the definition of “sham.”

S.C. Code Ann. § 57-25-150(A) (Supp. 2002) directs DOT to promulgate regulations governing the issuance of outdoor advertising permits. “The construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.” Dunton v. S.C. Bd. of Examiners in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987). “An administrative regulation is valid so long as it is reasonably related to the purpose of the enabling legislation.” Hunter & Walden Co. v. S.C. Licensing Bd. for Contractors, 272 S.C. 211, 212, 251 S.E.2d 186 (1978).


In Daisy Outdoor Advertising Co. v. South Carolina Department of Transportation, 352 S.C. 113, 572 S.E.2d 462 (Ct. App. 2002), the South Carolina Court of Appeals specifically rejected the argument that the ALJD improperly shifted the burden of proof to the permit-holder to overcome DOT’s prima facie case that the qualifying business was a sham activity as defined by 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002). Thus, the Court of Appeals did not find DOT’s Regulation setting forth its definition of a “sham activity” to be improper. The Court of Appeal also stated that it found no error with the ALJD’s interpretation of 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002) requiring that a permit-holder maintain meaningful operation of the qualifying business for a period of one year after approval of the permit. The Court of Appeals noted that 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2002), making it prima facie evidence that the qualifying activity is a sham if it fails to maintain the standards set forth under the definition of transient or temporary in 25A S.C. Code Ann. Regs. 63-342(CC)(1) (Supp. 2002) for one year following issuance of the permit, furthers the purpose of the Act and is consistent with the Act’s requirement that outdoor advertising signs be limited to unzoned areas of commercial activity. Similarly, I find that DOT’s definitions of “sham activity” and “transient or temporary” are consistent with and reasonably related to the purpose of the Act and therefore do not exceed DOT’s authority to promulgate Regulations governing the issuance of outdoor advertising permits.

10. Pursuant to S.C. Code Ann. § 57-25-160 (Supp. 2002), a person who violates a provision of the Act must be assessed a civil penalty by DOT of one hundred dollars a day until the violation ends. Pursuant to S.C. Code Ann. § 57-25-180(A) (Supp. 2002), DOT is required to give thirty days notice to the owner of an advertising sign and the owner of the land on which the sign is situated that the sign is illegal and must be removed. DOT requests that this tribunal impose a civil penalty on Marlin from thirty days following the date DOT notified Marlin that its signs were illegal and its sign permits were revoked.

S.C. Code Ann. § 57-25-180(D) (Supp. 2002) provides that the review of DOT’s decision that a sign is illegal is through an administrative hearing pursuant to the Administrative Procedures Act (“APA”). Marlin argues that the civil penalty provision should be triggered only after that administrative hearing is held and the ALJD finds that a person is violating a provision of the Act, not when the DOT first determines that a person is violating the Act. Marlin contends that if the penalty provision took effect thirty days after the DOT’s decision that a sign is illegal, then it would be too expensive for a person to petition the ALJD for a contested case hearing pursuant to S.C. Code Ann. § 57-25-180(D) (Supp. 2002) and the APA. I agree. In this case, a contested case hearing was originally scheduled for September 9, 2002. DOT requested, and was granted, three continuances of that hearing date. The hearing was eventually held on March 3, 2003. Marlin should not be penalized for the delay in the hearing before the ALJD due to DOT’s requests for continuances.

ORDER

For the foregoing reasons,

IT IS HEREBY ORDERED that Marlin’s three outdoor advertising permits, permit numbers 02-36-164310, 02-36-164311, and 02-36-164312, for the location along I-26 in Newberry County, are cancelled;

IT IS FURTHER ORDERED that Marlin shall remove the advertising signs, at Marlin’s expense, within thirty days of the date of this order;


IT IS FURTHER ORDERED that Marlin shall be assessed a civil penalty by DOT of one hundred dollars per day, beginning thirty days from the date of this order, until the violation ends;

IT IS FURTHER ORDERED that DOT is prohibited from approving any other sign permit applications for Marlin, or any sign permits for signs located on any property owned by Mr. Czura, statewide, until the signs at issue are completely removed from this location;

AND IT IS SO ORDERED.

________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

March 21, 2003

Columbia, South Carolina



[1] According to documentation submitted with the permit applications, Broad River Construction’s office was not open on Fridays.


Brown Bldg.

 

 

 

 

 

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