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:
Abbott Sign Co. vs. SCDOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioners:
Abbott Sign Co.

Respondents:
South Carolina Department of Transportation
 
DOCKET NUMBER:
00-ALJ-19-0338-CC

APPEARANCES:
For the Petitioner: Michael N. Duncan, Esquire

For the Respondent: Barbara M. Wessinger, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division (ALJD) pursuant to S.C. Code Ann. § 57-25-180(D) (Supp. 1999) and S.C. Code Ann. § 1-23-600 (Supp. 1999) and 25A S.C. Code Ann. 63-349 (Supp. 1999). Abbott Sign Company, Inc. (Abbott) properly and timely appealed South Carolina Department of Transportation's (SCDOT) cancellation of an outdoor advertising sign permit for a sign site adjacent to Interstate I-85, located between Highways S-42-57 and SC 110 in Spartanburg County. After notice to all parties, a hearing was conducted on September 28, 2000 at the ALJD in Columbia, South Carolina.

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. On December 27, 1996, Abbott applied for an outdoor advertising sign in an unzoned commercial area along I-85 in Spartanburg County. In order to obtain this permit, Abbott was required to show that a qualifying business was located within 600 feet of the proposed sign site. Abbott identified "Country Consignments" as the qualifying business. The SCDOT's Sign Coordinator, Joyce Casey Gardner, performed a field inspection of the proposed sign site and qualifying business to ensure they complied with the requirements of the Highway Advertising Control Act. On May 22, 1997, she recommended that the application be denied because the distance between the qualifying business (Country Consignments) and the proposed sign site exceeded 600 feet - a requirement of 25A S.C. Code Ann. Regs. 63-342(FF)(1) (Supp. 1999). On May 30, 1997, the SCDOT, after a review of Mrs. Gardner's recommendation, denied the Abbott's outdoor advertising application.

3. On December 4, 1997, an administrative hearing was held before Clinton Attaway, the Administrative Hearing Officer. After hearing testimony and receiving evidence, Mr. Attaway sustained the decision of the SCDOT to deny the permit application on the grounds that the distance between the qualifying business and the proposed sign site exceeded 600 feet. Abbott timely and properly appealed the final decision of the SCDOT. On July 22, 1999, a hearing was held before the Honorable J. Derham Cole in Spartanburg County Circuit Court. Judge Cole reversed the SCDOT's decision and ordered the permit to be issued. Judge Cole accepted Abbott's point of measurement rather than the point of measurement asserted by the SCDOT.

4. In compliance with the Order of Judge Cole, the SCDOT issued an outdoor advertising permit to Abbott.

5. On November 12, 1999, Mrs. Gardner discovered, during a routine inspection, that the qualifying business (Country Consignments) was no longer in operation. Specifically, Mrs. Gardner found the following:

a. Country Consignment's telephone had been disconnected.

b. Randy Robbins, the listed owner of Country Consignments, had sold Country Consignments to Mr. Jim McCullum. Mr. McCullum was present at the site on November 12, 1999 and he told Mrs. Gardner that he bought and sold cars at this location. Mr. McCullum indicated that he worked with G.T. Ayers, a used car business located near Country Consignments.

c. BellSouth confirmed that the telephone listed in Randy Robbins' name had been disconnected with no forwarding number. Also, the telephone line was a residential line and had never been a business line.

d. Mrs. Gardner further discovered that a Certificate of Occupancy, required by Spartanburg County prior to operating a business, had never been issued to Country Consignments. An interior upfit to finish the inside of the building was never obtained from the County. A final inspection of the building was not performed by the County and the County did not provide a release to the electric provider to provide electricity for this location to begin operations.

6. On Tuesday, January 11, 2000, Mrs. Gardner visited the business at 10:50 am. Mrs. Gardner found Mr. McCullum in his car reading a book. Mr. McCullum told Mrs. Gardner that he had not received a business license yet, but that the nature of his business had changed. He told her that he no longer sells cars, he fixes them for G.T. Ayers. He also gave Mrs. Gardner the phone number to the business. Mr. McCullum told Mrs. Gardner that his hours of operation were 9:00 am to 4:00 pm.

7. On Tuesday, January 18, 2000, Mrs. Gardner inspected the business at 10:30 am. The business was closed.

8. On Wednesday, January 19, 2000, Mrs. Gardner inspected the business at 10:10 am and found the business closed.

9. On Friday, January 21, 2000 at 9:45 am, Mrs. Gardner called the phone number given to her by Mr. McCullum and there was no answer. At 12:33 pm, she visited the business. No one was present at the business, but the building was unlocked. Mrs. Gardner inspected the building and found that the lights did not work and that there was no running water in the sink or the toilet.

10. On Monday, January 31, 2000, Mrs. Gardner once again visited the business. The business was closed and no one was available.

11. On Tuesday, February 1, 2000, Mrs. Gardner inspected the business, and it was closed.

12. On Thursday, February 10, 2000, Mrs. Gardner, along with Barbara Wessinger and Keith Melvin, visited the site. There was no one at the business. However, the inside of the building had been cleaned and there was running water in the bathroom. Also, there was a power cord and phone cord running into the building from outside sources. There was a license on the wall which stated that Richard Lee McCraw was the owner of Country Consignments.

13. On Friday, February 11, 2000, Mrs. Gardner arrived at the business at 9:27 am. Mr. Lloyd Webber was in the building and stated that he was working for Mr. Richard McCraw, the new owner of the business. Mr. Webber told Mrs. Gardner that the business was not officially open and that he did not know the hours of operation. Also, the business did not yet have a phone number. Mrs. Gardner noted during this inspection that the address for the business on Mr. McCraw's business license was 287 Bud Author Bridge Road, Cowpens, South Carolina. However, the address of Country Consignments is 287 Buds Drive, Cowpens, South Carolina.

14. On Monday, February 14, 2000, Mrs. Gardner checked the status of the business at 1:28 pm. The business was closed.

15. On Thursday, February 15, 2000 at 1:30 pm, Mrs. Gardner arrived at the site and found that it was closed. She knocked on the business' door, looked in the window, and tried the door knob. She could not enter the business and no one was available at the location.

16. On Wednesday, February 23, 2000, Mrs. Gardner inspected the business and, once again, found that it was closed.

17. On Thursday, February 24, 2000 at 1:40 pm, Mrs. Gardner arrived at the location and it was closed.

18. On Thursday, March 9, 2000, Mrs. Gardner visited the business at 10:12 am. The business was closed.

19. On April 4, 2000, the SCDOT notified Abbott that the sign permit was cancelled on the grounds that the qualifying business ceased operations within one (1) year of the permit issuance. This letter was followed by a second letter dated May 15, 2000.

20. On May 18, 2000, Abbott appealed the notice of cancellation of its permit.

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. 1999). The Act provides that SCDOT 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. 1999). Specifically, Section 57-25-150(A) provides that:

[t]he commission shall issue permits for the erection and maintenance of outdoor advertising signs coming within the exceptions contained in items (1), (2), and (3) of subsection (A) of Section 57-25-140, consistent with the safety and welfare of the traveling public necessary to carry out the policy of the State declared in this article and consistent with the national standards promulgated by the Secretary of Transportation or other appropriate federal officials pursuant to Title 23, United States Code.



2. S.C. Code Ann. § 57-25-140 (A) (Supp. 1999) 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.



According to S.C. Code Ann. § 57-25-120(5)(i) (Supp. 1999) "'[c]ommercial or industrial activities' mean 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: ... (i) sham, prohibited, or illegal activities." (Emphasis added). Section 57-25-120(4) states that

"[a]n unzoned commercial, business, or industrial area means 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 600 feet of it on both sides of the highway." (Emphasis added).

Furthermore, 25A S.C. Code Ann. Regs. 63-342 (FF) (4) (Supp. 1999) defines "unzoned commercial or industrial areas" as not including areas occupied by sham activities. "Sham activity" is defined in Regulation 63-342 (U) (Supp. 1999) as:

. . . 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. (Emphasis added).



"Transient or temporary activities" are defined under Regulation 63-342 (CC) (Supp. 1999), as "activities that do not have":

(1) 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;



(2) electricity, telephone, running water, indoor restroom, permanent flooring other than dirt, gravel, sand, etc; adequate heating; and



(3) the activity, or a major portion of it, conducted from a permanent building constructed principally of brick, concrete block, stone, concrete, metal, or wood or some combination of these materials or from a mobile home or trailer which the applicant can prove is considered part of the real estate and taxed accordingly.



Finally, according to 25A S.C. Code Ann. Regs. 63-344 (G) (Supp. 1999):



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. (Emphasis added).



3. "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 (S.C. Ct. App. 1996).

As set forth above, the purpose of the "Highway Advertising Control 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, Regulation 63-342 (U) (Supp. 1999) defines 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." "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. Public Service Commission, 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, Regulation 63-342 (U) establishes a two prong test to determine if a business is a "sham activity" seeking to qualify for a permit, both 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."

4. In this case, SCDOT presented evidence that Abbott's qualifying business (Country Consignments) was a "transient or temporary"activity within the meaning of Regulation 63-342 (CC). Mrs. Gardner visited the business several times a week over a four (4) month period. From January 18 to March 9, Mrs. Gardner visited the qualifying business twelve (12) times, and the business was closed on each occassion. Furthermore, during the January 21st visit, Mrs. Gardner discovered that there was no running water or electricity. Proof that Abbott's qualifying activity was a "transient or temporary" activity establishes a "prima facie" case that the business was a "sham activity." Consequently, both prongs of the two prong test established in Regulation 63-342(U) were prima facially established by proof that the qualifying business ceased to operate within one year after the sign permit was issued. Thus, the burden shifted to Abbott to prove that the qualifying business was not a "sham activity."

5. Abbott presented evidence that Mr. Dean Abbott and Mr. Paul Abbott, the owners of Abbott, drive by the qualifying business on a regular basis and that there appears to be business activity at the site. Abbott argued that the length of Mrs. Gardner's investigation was insufficient and that the business could have been open on the days that Mrs. Gardner was not there. However, Abbot did not present any evidence from the owners or operators of Country Consignments concerning the hours and days of operation. Furthermore, Abbott did not present any financial records from the qualifying business which reflected that the business was open during this time. Also, Abbott did not present evidence that these businesses had the proper business license to conduct a business. Therefore, I find that Abbott did not present sufficient evidence to rebut the prima facie case established by the SCDOT.

6. Country Consignments is a sham activity under the Highway Advertising Control 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 Abbott's expense. Furthermore, SCDOT is prohibited from approving any other sign permit applications for Abbott, statewide, until the sign is completely removed from this location.

7. At the hearing, Abbott argued that Regulations 63-342(U) and 63-344(G) violate the Equal Protection Clause and the Due Process Clause of the Constitution. According to Video Gaming Consultants, Inc. v. S.C. Dep't of Revenue, 342 S.C. 34, 535 S.E.2d 642, 644 (2000), the South Carolina Supreme Court held that "ALJs have no authority to pass upon the constitutionality of a statute or regulation." These "constitutional issues may be raised, but not ruled upon, in the administrative proceedings. Id. at 645. Therefore, this tribunal makes no ruling as to the constitutional issues raised by Abbott.

ORDER

IT IS THEREFORE ORDERED that the petition of Abbott is denied and the decision to cancel the outdoor advertising permit and require the removal of the sign, including the removal of the foundation, at Abbott's expense, is affirmed.

AND IT IS SO ORDERED.





_________________________________

C. Dukes Scott

Administrative Law Judge



December 15, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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