ORDERS:
ORDER OF DISMISSAL
In the above-captioned case, Petitioners challenge the denial of an outdoor advertising permit. A hearing was held on this matter on
August 23, 2000 at the Administrative Law Judge Division. Petitioner argues that, but for the issuance of a permit to Abbot Sign
Company (Abbot), which is not a party to this action, their permit application would have been granted. Petitioner is therefore
contesting the grant of a permit to Abbot, as well as the denial of its own application. For the following reasons, I find that this case
should be dismissed:
1. The grant of an outdoor advertising permit to Abbot resulted in the denial of Petitioner's application for its outdoor advertising
permit by the S.C. Department of Transportation. In particular, S.C. Code Ann. Regs. 63-346 (Supp.1999) (Regulation 63-346)
provides that outdoor advertising signs may not be less than 500 feet apart. Consequently, to grant both applications would have
resulted in a violation of the regulation. In effect, the parties were competing for the same location.
2. Abbot Sign Company is a necessary party to this action under Rule 19 of the South Carolina Rules of Civil Procedure, as Daisy is
protesting the permit granted to Abbot. Further, Article I, § 22 of the S.C. Constitution states that "[n]o person shall be finally bound
by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to
be heard." The denial of Petitioner's application is inextricably linked with the grant of a permit to Abbot. Therefore, a decision
cannot be made without possibly affecting Abbot's rights.
3. Regulation 63-349(J) (Supp. 1999) contemplates the potential for competing applications:
"Permits will be considered on a first-come, first-served basis. If applications are
submitted for the same or conflicting sites, each will be dealt with in turn. If there
is a tie, it will be settled by a coin toss at which both applicants may be witnesses."
Even though Regulation 63-349(J) provides for a "sophisticated" method of settling a tie between competing applicants by a coin toss,
it does not provide a regulatory vehicle for one applicant to challenge the grant of a permit to a competing applicant.
The South Carolina Supreme Court has determined that, in certain administrative agency matters, parties must be afforded due process
rights to review of agency decisions that affect private rights whether or not the decisions fall within the scope of a regulation or the
Administrative Procedures Act's definition of a contested case. See Stono River Envt'l Protection Ass'n v. S.C. Dep't. of Health and
Envt'l Control, 305 S.C. 90, 406 S.E.2d 340 (1991). In Stono River, the Court opined:
"Administrative agencies are required to meet minimum standards of due process.
S.C. CONST. ART 1, § 3; Smith & Smith, Inc. v. S.C. Public Service Commission,
271 S.C. 405, 247 S.E.2d 677 (1978). "Due process is flexible and calls for such
procedural protections as the particular situation demands." Morrissey v. Brewer,
408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In our view
constitutional due process provisions, apart from the APA, are sufficient to confer
the rights to notice and for an opportunity to be heard."
Stono River, 305 S.C. at 94, 406 S.E.2d at 342. Here, the Department's grant of Abbot's application is subjected to the due process
considerations enunciated in Stono and prescribed by Article 1, § 22 of the S.C. Constitution.
4. There is a case pending in the South Carolina Supreme Court, Daisy Outdoor Advertising Company, Inc. v. South Carolina
Department of Transportation and Abbot Sign Company, Inc., Docket No. 2000-124, dealing with these parties and a collateral issue
which may render this action moot.
IT IS THEREFORE ORDERED that the above-captioned case is hereby DISMISSED without prejudice. Petitioner may refile this
action within 60 days of the Supreme Court decision involving these parties and deciding collateral issues.
AND IT IS SO ORDERED.
JOHN D. GEATHERS
Administrative Law Judge
August 31, 2000
Columbia, South Carolina |
