SC Administrative Law Court Decisions

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. It is also a fundamental principle of administrative proceedings that the burden of proof is on the proponent of a rule or order, or on the party asserting the affirmative of an issue.

73A C.J.S. Public Administrative Law and Procedure § 128 at 35 (1983) (emphasis added), cited with approval in Leventis v. S.C. Dep't of Health and Envtl. Control, 340 S.C. 118, 133, 530 S.E.2d 643, 651 (Ct. App. 2000).

B. Transient Activity and Scheduled Hours

The requirements in the regulations delineating Transient or Temporary Activities have been judicially determined to be a valid exercise of the authority granted to the Department by statute. Young v. S.C. Dep't of Highways and Public Trans., 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985). S.C. Code Ann. § 57-25-185 (Supp. 2000) explicitly directs the Department to promulgate regulations consistent with the state and federal statutes. These regulations and the agency's interpretation of them are entitled to deference from this tribunal.

Our Supreme Court has held that interpretive rules are 'entitled to great respect by the courts but [are] not binding on them.' An interpretive rule is a rule which is promulgated by an administrative agency to interpret, clarify or explain the statutes or regulations under which the agency operates.

Young v. S.C. Dep't of Highways and Pub. Transp., 287 S.C. 108, 112, 336 S.E.2d 879, 881-82 (Ct. App. 1985) (citations omitted). ⁽³⁾

In order for a business not to be considered "transient or temporary," it must maintain certain standards; among them, the business must have at least one employee attendant at the activity site, performing meaningful work and available to the public for at least 36 hours per week on at least 4 days per week for at least 48 weeks per year. 25A S.C. Code Ann. Regs. 63-342(CC)(1) (Supp. 2000). In the instant case, Mr. Matthews presented credible testimony that he works at the business at least 36 hours per week on at least four days for at least 48 weeks per year. Even though he works as a full-time EMT, his schedule is flexible to allow him to comply with the aforementioned hours required by the regulation. The Department seems to hinge its argument that Mr. Matthews does not comply with the hourly work requirement on the schedule posted at the business on the day of its inspection. Mr. Matthews explained that the schedule was tentative and varied from week to week; this is the reason it was posted on an erasable board.

Furthermore, the evidence indicated that Mr. Matthews is available at the site far more than the posted schedule indicates. On days when Mr. Matthews does not work as an EMT, he is either at the shop, on service calls, or going to get parts; he sometimes works as late as 10 p.m. Even making allowances for times when Mr. Matthews is away from the shop on service calls or to get parts, I find that Mr. Matthews has met the regulatory requirements and that his business is not a Transient or Temporary Activity. The owner has more than $60,000 invested in a concrete block building; Mr. Matthews has approximately $10,000 invested in capital and equipment, including a large toolbox, lifts, jacks, compressors, air tools, and diagnostics. The building has a concrete foundation and floor, gas and electric heat, a fully functional bathroom and potable water, phone service, and electricity.

C. Visibility Requirement

Under the Highway Advertising Control Act (Act), S.C. Code Ann. § 57-25-110 et seq. (Rev. 1991 and Supp. 2000), an outdoor advertisement or billboard may not be displayed or erected along an Interstate unless it satisfies an exception. The purpose of the statute and accompanying regulations is to allow billboards for the benefit of the traveling public in commercial or industrial areas or close proximity to businesses while preserving the aesthetics of pristine and undeveloped stretches of highway. See S.C. Code Ann. § 57-25-130 (Supp. 2000). Thus, the visibility requirement must be construed with consideration of the overall purpose of the Act.

The one exception pertinent here is prescribed in S.C. Code Ann. § 57-25-140(8), "signs . . . located in unzoned commercial or industrial areas. . . ." A commercial or industrial area is defined in S.C. Code Ann. § 57-25-120(5)(f) (Supp. 2000) ⁽⁴⁾, which provides:

'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. . . . (Emphasis added.)

S.C. Code Ann. Regs. 63-342(HH) defines "visible" as:

capable of being seen (whether or not legible) and readily recognized as a sign or commercial or industrial activity by a person of normal acuity. The 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.

Thus, the purpose of the visibility requirement is to ensure that billboards are located in already commercial areas, thus balancing commercial interests with maintaining aesthetics. A critical reading of the pertinent regulations indicates that visibility must be addressed from the perspective of a person traveling in a car on the interstate. Whether the business must be visible from a vehicle traveling at the speed limit or by standing still is not addressed by the regulations. On the other hand, the criteria for determining whether a billboard is legible or intended to be read from the main-traveled way specifically indicate that viewing time is to be measured from a traveling car. See 25A S.C. Code Ann. Regs. 63-343(A) (Supp. 2000). Legibility and visibility are clearly distinguished in the regulations; legibility appears to be a higher threshold imposed on the outdoor advertising signs themselves, rather than visibility of the business in qualifying for a permit. Nonetheless, measuring visibility from a traveling car comports with the overall purpose of the Act and the limits on the placement of billboards. Thus, the standard set forth in determining legibility from a traveling car should also be used in gauging visibility.

In addition, Regulation 63-343(B) provides: "Where a sign is legible from two or more highways, one or more of which is a highway subject to the provisions of the Act, the more stringent of applicable control requirements will apply." 25A S.C. Code Ann. Regs. 63-343(B) (Supp. 2000). Therefore, visibility should also be determined from the interstate, not from the secondary road that runs parallel to the interstate.

Hence, the crux of the matter in this case is whether the sign and business are visible, as defined by the regulation, from the interstate. That is, the business and sign must be (1) capable of being seen, and (2) readily recognized as a sign or commercial or industrial activity by a person of normal visual acuity. Under the definition of Visible provided in Regulation 63-342(HH), the presence of the sign affixed to the building cannot be considered in determining visibility. The Department determines visibility based on a visual inspection and the contents of the application. In the present case, the business and sign are only partially visible during the times of the year when the leaves have fallen from the trees which intervene between the business and the interstate. Thus, the business is not visible and readily identifiable for arguably half of the year. The business is only partially visible when there is little or no foliage on the trees and from the vantage point of a person standing still looking directly at the business. This is not what the Act contemplates and does not meet the visibility requirements.

In U.S. Outdoor Advertising, Inc. ⁽⁵⁾, the South Carolina Supreme Court held that the Department's definition of visibility to include "readily recognized as a sign or commercial or industrial activity" under 25A S.C. Code Ann. Regs. 63-342(HH) (Supp. 2000) was within its authority pursuant to S.C. Code Ann. §§ 57-25-150(D) and -220 (Supp. 2000). The definition did not impermissibly expand the requirement that a business be visible under S.C. Code Ann. § 57-25-120(5)(f) (Supp. 2000), but rather was reasonably related to the purpose of the Act and furthered the accompanying public policy. ⁽⁶⁾ Under Carter ⁽⁷⁾ as modified by U.S. Outdoor Advertising, Inc., the sign and business must be visible and recognizable as a commercial activity; however, the particular type of commercial activity need not be discernible to meet the visibility requirement for an outdoor advertising permit, nor does the Department require this in evaluating applications. In any event, in the instant case, the business and the sign are visible only for approximately half of the year. S.C. Code Ann. § 57-25-120(5)(f) (Rev. 2000) and Regulation 63-342(HH) are not satisfied by a sign and business which are only visible part of the year. ⁽⁸⁾

Under the second part of the regulatory definition of visible, the business must be readily recognized as a commercial or industrial activity without considering the sign. Here, when the business is partially visible, it is recognizable as a commercial activity during the winter months. While the Department argued that the business structure resembled a house, it would appear to a reasonable person traveling on the interstate that a business activity was being conducted based on the structure of the building, even if it were not completely discernible what type of business activity.

D. Equal Protection

Petitioner raised an equal protection argument contending that the Department has employed disparate treatment in the granting and denial of outdoor advertising permits. Petitioner contends that his equal protection rights have been violated, as businesses which are not readily visible or are less visible than Matthews Auto Service and are not clearly discernible as commercial activities have been granted outdoor advertising permits. I do not find that Petitioner has been deprived of his Fourteenth Amendment right to equal protection. Petitioner failed to meet his burden of demonstrating that he was treated differently from other similarly situated sign owners. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

Petitioner presented no evidence that the allegedly comparable sites were permitted under the same provisions. Recently permitted qualifying businesses may qualify under the regulations, though the buildings are smaller, less permanent than concrete, and may not be as readily identifiable as a commercial business than Mr. Matthews' business. Further, it is reasonable that signs may go undetected or inadvertently overlooked as the Department has several miles of highway to monitor. Thus, any perceived inconsistency with other permitted sites would be properly handled by corrective action by the Department rather than granting the permit in this instance.

ORDER

IT IS THEREFORE ORDERED that Carolina Outdoor's application for an outdoor advertising permit based on Matthews Auto Service as a qualifying commercial activity is DENIED.

AND IT IS SO ORDERED.

__________________________________

JOHN D. GEATHERS

Administrative Law Judge

June 29, 2001

Columbia, South Carolina

1. On the eve of trial, the Department made a motion on May 14, 2001, to amend its Prehearing Statement to include the ground that Petitioner's business constitutes a transient activity as an independent basis for its denial of the permit. The Department asserts that an employee does not perform meaningful work and is not available to the public for at least 36 hours per week for 4 days per week at least 48 weeks per year. The Department contends the ground was inadvertently omitted from the denial letter. Petitioner initially objected to Respondent raising the issue of transient activity as a ground for denial of its permit, since it was not originally cited by the Department in its denial letter of February 20, 2001. While the Department's motion was initially denied, Petitioner insisted that the Department proceed with both grounds for denial of the permit now rather than litigate a subsequent denial of the permit on the ground that the business is transient. Because Petitioner bears the burden of proving it meets all criteria for issuance of the permit, Petitioner waived on the record at the hearing any objection to the Department raising the issue. Further, Petitioner stated that it had adequate notice of the Department's contention that the business was a transient activity and that it was prepared to present evidence addressing the issue.

2. The preponderance of the evidence is "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Black's Law Dictionary 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (2000) (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

3. See also Nucor Steel v. S.C. Pub. Serv. Comm'n, 310 S.C. 539, 543, 426 S.E.2d 319, 321 (1992) ("Where an agency is charged with the execution of a statute, the agency's interpretation should not be overruled without cogent reason.") (citations omitted); Gilstrap v. S.C. Budget and Control Bd., 310 S.C. 210, 215, 423 S.E.2d 101, 104 (1992) ("Where an administrative agency has consistently applied a statute in a particular manner, its construction should not be overturned absent cogent reasons.") (citations omitted); Ruocco v. S.C. State Bd. of Registration for Prof. Engineers and Land Surveyors, 314 S.C. 111, 115, 441 S.E.2d 829, 831 (Ct. App. 1994) ("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.") (citations omitted).

4. See also 25A S.C. Code Ann. Regs. 63-342(FF)(1) (Supp. 2000).

5. U.S. Outdoor Adver., Inc. v. S.C. Dep't of Transp., 324 S.C. 1, 481 S.E.2d 112 (1997). The court noted that "other jurisdictions have upheld similar regulations." Id. at 4, 114 (citing Osage Outdoor Adver. v. Mo. Highway and Transp. Comm'n, 680 S.W.2d 164 (Mo. App. 1984); Blocher Outdoor Adver. v. Dep't of Transp., 347 N.W.2d 88 (Minn. App. 1984); Dep't of Transp. v. Sapp Outdoor Adver. Co., 171 Ga. App. 228, 319 S.E.2d 87 (1984)).

6. U.S. Outdoor Adver., Inc. at 3-4, 113.

7. Carter v. S.C. Dep't of Highways and Pub. Transp., 279 S.C. 332, 306 S.E.2d 614 (1983). The court held in Carter that the hearing commissioner exceeded his authority in imposing the requirement that the business must be discernible as a commercial activity as a component of being visible. The regulations were subsequently amended to include this requirement, which was later upheld as constitutional in U.S. Outdoor Advertising, Inc.

8. Petitioner stated that it has considered clearing away the brush and much of the foliage intervening between the business and the interstate for purposes of decreasing the risk of fire and increasing the visibility of the business. The contemplated activity would require Petitioner to obtain a "daylighting" permit from the Department under S.C. Code Ann. § 57-25-140(I)(1) (Supp. 2000); after clearing pursuant to a daylighting permit, there is a two year waiting period before Petitioner could apply for an outdoor advertising permit.