ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal upon the request of Petitioner Abbott Sign Company, Inc.
(Abbott) for a contested case hearing to challenge the decision of Respondent South Carolina
Department of Transportation (DOT or Department) to deny Abbott’s application for an outdoor
advertising permit. Specifically, Abbott seeks a permit to construct a sign within the vicinity of a
National Guard Armory along Interstate 85 in Cherokee County, South Carolina. The Department
denied the permit application on the ground that the qualifying commercial or industrial activities
identified by Petitioner for the sign are not readily recognizable as such from the main-traveled way
and thus are not “visible” from the main-traveled way as required by S.C. Code Ann. § 57-25-120(5)(f) (Supp. 2002) and defined by 25A S.C. Code Ann. § 63-342(HH) (Supp. 2002).
After timely notice to the parties, a hearing of this matter was held on April 16, 2003, at the
Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence and
arguments offered by the parties and upon the applicable law, I find that Petitioner’s application for
an outdoor advertising permit must be denied.
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.On April 15, 2002, Petitioner Abbott Sign Company, Inc. submitted an application for
an outdoor advertising permit to the Department. Abbott seeks to construct a lighted, stacked
double-faced sign on the south side of Interstate 85 in Cherokee County, South Carolina, near
milepost 94, between S.C. Highway 150 and S.C. Highway 18. It is undisputed that the proposed
location for the sign is within six hundred feet of the South Carolina National Guard’s Gaffney
Armory. Further, it is undisputed that the proposed location for the sign, and, in fact, Cherokee
County as a whole, is unzoned.
2.On its application, Abbott listed the National Guard Armory and Welch Associates,
Inc., which leases space in the armory, as the qualifying commercial or industrial activities for the
proposed sign. Welch Associates, Inc. is a business consulting firm that provides both on-site and
off-site leadership and confidence training for employees of its clients. Welch Associates conducts
this off-site training at its offices in the Gaffney National Guard Armory and on the surrounding
armory grounds. Under the terms of its lease with the National Guard, Welch Associates has the
exclusive use of two rooms in the armory, which it uses as an office and a storage room, and has
access to a classroom, the drill floor, and the armory grounds for its training activities. The South
Carolina National Guard conducts regular military training exercises at the armory and houses a
National Guard recruiting office in the armory along with other Guard offices. In addition to these
National Guard activities, the Guard leases full-time offices in the armory to Welch Associates, Inc.
and the Fellowship of Christian Athletes and periodically rents space in the armory’s drill room for
dances, banquets, wedding receptions, reunions, and other special events. In 2002, the Guard leased
the armory approximately twenty-five times for such events.
The armory building is open to the public throughout the week during normal business hours.
During those hours, visitors may access the business and organizational offices in the armory through
the front entrance of the building. However, because the armory is a government military installation,
when the country is on heightened alert, as determined by the United States Department of Homeland
Security, the front entrance is locked and visitors must ring a door bell to gain access to the armory.
3.The armory building consists, in relevant part, of a central, two-story drill room
situated behind an entrance lobby, which is flanked by two, one-story office wings. The building is
contemporary in design and has a brick facade with a blue metal roof. The front of the building is
dominated by a brick entrance portico and the windowed exteriors of the two office wings. As such,
the armory resembles a number of familiar structures. Consequently, a person of normal visual acuity
viewing the building from Interstate 85 would perceive the armory as some sort of public building,
but would not be able to readily determine whether the building was a commercial office complex,
a school, a church, a nursing home, or a governmental administrative building, among other
structures. And, as noted above, the armory is, in fact, used for a variety of functions, both
commercial and non-commercial, including the private business activities of Welch Associates, the
non-profit organizational activities of the Fellowship of Christian Athletes, and the military training
activities of the South Carolina National Guard.
4.The Department denied Petitioner’s application for an outdoor advertising permit for
a sign near the armory on two grounds: (1) the National Guard activities at the armory do not
constitute commercial, business, or industrial activities so as to qualify the area surrounding the
armory as an unzoned commercial or industrial area; and (2) the other activities contained within the
armory, including the business activities of Welch Associates, Inc., are not qualifying commercial or
industrial activities for the area, because those activities are not visible from the main-traveled way,
as the armory building is not readily recognizable as commercial or industrial activity from I-85.
(Pet’r Ex. #8.) Petitioner Abbott contends that the business activities at the armory, including the
operations of Welch Associates and the Guard’s leasing of space within the armory, do qualify as
commercial activities and that, given the unique design of the armory, the building is readily
recognizable from the main-traveled way as a commercial building.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600(B)
(Supp. 2002) and 25A S.C. Code Ann. Regs. 63-349(M) (Supp. 2002).
The South Carolina Highway Advertising Control Act (Act), S.C. Code Ann. §§ 57-25-110
et seq. (Supp. 2002), “provide[s] a statutory basis for [the] regulation of outdoor advertising
consistent with the public policy relating to areas adjacent to interstate and federal-aid primary
systems” in South Carolina. S.C. Code Ann. § 57-25-130 (Supp. 2002). Accordingly, the Act
prohibits the construction or maintenance of an outdoor advertising sign or billboard along an
interstate highway unless it satisfies one of nine enumerated exceptions. See S.C. Code Ann. § 57-25-140(A) (Supp. 2002). The direct regulation of the erection and maintenance of signs under these
exceptions is entrusted to the Department, which is empowered to promulgate regulations to further
define the exceptions, and which is responsible for issuing permits for the construction of signs under
the exceptions. See S.C. Code Ann. § 57-25-150(A), (B) (Supp. 2002).
In the instant matter, Petitioner Abbott seeks a permit from the Department for the
construction of a sign under one of the exceptions found in Section 57-25-140(A). Therefore,
Abbott, as the applicant and the party affirmatively asserting its eligibility for an outdoor advertising
permit, bears the burden of proof in this matter. 25A S.C. Code Ann. Regs. 63-349(M) (Supp. 2002)
(“The applicant shall bear the burden of showing that the Department should issue the permit.”); see
also Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651
(Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon
the party asserting the affirmative of an issue); 73A C.J.S. Public Administrative Law and Procedure
§ 128, at 35 (1983) (“In administrative proceedings, the general rule is that an applicant for relief,
benefits, or a privilege has the burden of proof, and the burden of proof rests upon one who files a
claim with an administrative agency to establish that required conditions of eligibility have been
met.”). Consequently, Abbott must establish, by a preponderance of the evidence, that the sign it
wishes to construct meets the applicable standards and that it should be issued an outdoor advertising
permit. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998)
(holding that the standard of proof in an administrative proceeding is generally the preponderance of
the evidence).
Here, Abbott contends its proposed billboard should be permitted for construction under the
exception found in Section 57-25-140(A)(8) for “signs located in unzoned commercial or industrial
areas.” The Act defines this “unzoned commercial or industrial area” 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); see also 25A S.C. Code Ann. Regs. 63-342(FF)(1) (Supp. 2002).
The Act goes on to further define the qualifying commercial and industrial activities, and to exclude
activities not visible from the main-traveled way, among certain other activities, from that definition:
“Commercial or industrial activities” means 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: . . . (f)
activities not visible from the main-traveled way . . . .”
S.C. Code Ann. § 57-25-120(5)(f) (Supp. 2002). Stated another way, an area cannot qualify as an
unzoned commercial or industrial area solely because some business activities are occurring on the
land; rather, those business activities not only must be present, but must also be visible from the
highway in order to render an unzoned commercial area eligible for a sign.
Under the Department’s regulations, to be considered “visible” from the main-traveled way,
a sign or an activity must be “capable of being seen (whether or not legible) and readily recognized
as a sign or commercial or industrial activity by a person of normal visual acuity.” 25A S.C. Code
Ann. Regs. 63-342(HH) (Supp. 2002) (emphasis added); see also U.S. Outdoor Advertising, Inc. v.
S.C. Dep’t of Transp., 324 S.C. 1, 481 S.E.2d 112 (1997) (upholding this regulatory definition of
“visibility” as consistent with the underlying policies of the Highway Advertising Control Act).
Further, “[t]he presence of a sign, whether attached to the building or free-standing shall not be
considered in determining whether or not a commercial or industrial activity is visible.” Id. These
visibility requirements ensure that billboards and other signs will be located in areas that are already
visibly commercial and industrial in nature, and thereby strikes a balance between the economic
interests of local businesses and the aesthetic interests of the motoring public. See S.C. Code Ann.
§ 57-25-130 (Supp. 2002) (noting that outdoor advertising is “a business which must be allowed to
exist and operate where other business and commercial activities are conducted”).
The crux of the instant matter is whether the proposed qualifying commercial or industrial
activities at the National Guard Armory are visible, as defined by DOT regulations, from Interstate
85. For, regardless of the character of the activities occurring at the armory, if those activities are
not both (1) capable of being seen and (2) readily recognizable as commercial or industrial activities
from I-85 by a person of normal visual acuity, then those activities cannot qualify the armory and the
land surrounding it as an unzoned commercial or industrial area.
Here, there is no question that the Gaffney National Guard Armory is capable of being seen
by travelers on Interstate 85. However, the armory does not meet the second prong of the visibility
standard set forth in the regulations. While commercial activity is undeniably ongoing in the armory,
most clearly in the form of Welch Associates’ business activities, these activities cannot be readily
recognized as such from the interstate. In this case, the armory building can reasonably be perceived
by a prudent person with normal eyesight traveling on I-85 as a public building resembling a range
of structures including office complexes, schools, churches, nursing homes, and governmental
administrative buildings.
Moreover, as noted above, the regulation precludes consideration of the
armory’s sign, which indicates that the building is an armory and that the building houses Welch
Associates, when making this visibility determination. Accordingly, this inherent ambiguity in the
appearance of the armory building and in the character of the activities occurring in the building
prevents the armory from being “readily recognized” as a commercial or industrial activity.
Put
simply, a reasonable person traveling on Interstate 85 would not, upon viewing the armory, easily or
immediately know that commercial activity is being conducted in the armory building. Rather, this
observer, without reference to the armory’s sign, would be left guessing as to whether the armory
building was a school, church, nursing home, long-term care facility, governmental administrative
building, or commercial office building. And, this sort of guesswork is not the ready recognition of
commercial or industrial activities required for visibility under the regulations.
Given the ambiguous appearance of the Gaffney National Guard Armory, the armory building
and the activities occurring within it do not satisfy the visibility requirements of Regulation 63-342(HH), and therefore cannot be considered as qualifying commercial or industrial activities under
Section 57-25-120(5). Further, beyond the particular requirements of the Act and the Department’s
regulations, this finding comports with the Act’s general policy of placing outdoor advertising signs
in areas–unlike that surrounding the armory–that are already clearly commercial or industrial in
character. As the qualifying commercial or industrial activities identified by Petitioner for its
proposed sign are not visible from the main-traveled way, Petitioner’s application for an outdoor
advertising permit based upon those activities must be denied.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that Petitioner’s application for an outdoor advertising permit
to construct a sign near the Gaffney National Guard Armory along Interstate 85 in Cherokee County,
South Carolina is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 19, 2003
Columbia, South Carolina |