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2005-UP-072 - Carolina Outdoor v. SCDOT

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Carolina Outdoor Development, LLC,        Appellant,

v.

South Carolina Department of Transportation,        Respondent.


Appeal From Jasper County
Perry M. Buckner, Circuit Court Judge


Unpublished Opinion No. 2005-UP-072
Submitted January 1, 2005 – Filed January 26, 2005


AFFIRMED


Darrell T. Johnson, Jr. and Mills Lane Morrison, Jr., both of Hardeeville, for Appellant.

Barbara Munig Wessinger, of Columbia, for Respondent.

PER CURIAM:  Carolina Outdoor Development, LLC (Carolina Outdoor) appeals the circuit court order affirming the denial of three commercial outdoor advertising permits under the South Carolina Highway Advertising Control Act (the Act).  See S.C. Code Ann. 57-25-110–710 (Supp. 2004). Carolina Outdoor argues substantial evidence does not support the underlying decision, and the court erred in finding no violation of Carolina Outdoor’s equal protection rights.  We affirm.

FACTS/PROCEDURAL BACKGROUND

In February 2001, Carolina Outdoor applied to the South Carolina Department of Transportation (DOT) for permits needed to erect three commercial outdoor advertising signs on unzoned commercial property Carolina Outdoor owned in the vicinity of Interstate 26 in Calhoun County.  Carolina Outdoor claimed it qualified for the permits because its tenant, Matthews Auto Service [1] , engaged in commercial activity on the subject property.  See S.C. Code Ann. §57-25-140(A)(8) (Supp. 2004) (Permitting certain outdoor advertising signs on unzoned commercial or industrial areas along interstate or federal-aid primary highways).  DOT denied the permits, relying on an exception for businesses engaged in “activities not visible from the main traveled way.”  See S.C. Code Ann. §57-25-120(5)(f) (Supp. 2004).  Specifically, it found that Matthews Auto Service’s business activities were not “visible from the main traveled way” except to a partial extent in fall and winter months when leaves had fallen from trees located between Matthews Auto Service and Interstate 26.

Carolina Outdoor appealed to the South Carolina Administrative Law Court (ALC) [2] , which conducted a hearing in May 2001.  In August 2001, the ALC affirmed the DOT’s decision in a written order.  Carolina Outdoor then appealed to the circuit court, which conducted a hearing and subsequently affirmed the ALC’s order.  The circuit court denied Carolina Outdoor’s Rule 59(e) motion for reconsideration.  This appeal followed.

SCOPE OF REVIEW

“This court must affirm an administrative agency’s decision if the decision is supported by substantial evidence and we may not substitute our judgment for that of the agency upon questions for which there is room for difference of intelligent opinion.”  Smith v. Newberry County Tax Assessor, 350 S.C. 572, 577-78, 567 S.E.2d 501, 504 (Ct. App. 2002).  “Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.”  Id. at 578, 567 S.E.2d at 504 (quoting Grayson v. Carter Rhoad Furniture, 317 S.C. 306, 309, 454 S.E.2d 320, 321 (1995)).

DISCUSSION

I.       Visibility

Carolina Outdoor first argues that substantial evidence does not exist to support a finding that Matthews Auto Service was unqualified to receive commercial outdoor advertising permits because it engaged in “activities not visible from the main traveled way.”  We disagree.

The Act regulates “the erection and maintenance of outdoor advertising signs adjacent to the interstate and federal-aid primary [highway] systems” in South Carolina.  Daisy Outdoor Adver. Co. v. South Carolina Dep’t of Transp., 352 S.C. 113, 117, 572 S.E.2d 462, 464 (Ct. App. 2002).  The Act limits the placement of commercial outdoor advertising signs to specific areas, including “unzoned commercial areas.”  Id. at 117, 572 S.E.2d at 465.  Business activities that do not qualify property as an unzoned commercial area includes “activities not visible from the main traveled way.”  See S.C. Code Ann. §57-25-210(5)(f) (Supp. 2003).   DOT regulations define “visible” as “capable of being seen, 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. 2004);  U.S. Outdoor Advertising, Inc. v. South Carolina Dep’t of Transp., 324 S.C. 1, 3, 481 S.E.2d 112, 113 (1997).

Here, Carolina Outdoor’s argument essentially hinges on whether Matthews Auto Service was “capable of being seen” from Interstate 26 and “readily recognized [as a commercial activity] by a person of normal visual acuity.”  The ALC concluded that this condition was not sufficiently established.  It was noted, however, that the location was partially visible during the colder months when foliage had fallen from trees located between Matthews Auto Service and Interstate 26.  It was determined, therefore, that Matthews Auto Service was not “visible” within the meaning of the Act, and thus unqualified for the permits Carolina Outdoor sought.  We agree for the reasons articulated in the ALC’s detailed and well-reasoned order, which we adopt and incorporate by reference herein. 

II.      Equal Protection Violation

Carolina Outdoor also argues that denial of the permits violated its equal protection rights under the Fourteenth Amendment to the United States Constitution because permits were granted to others “where the qualifying business [was] equally or less visible and identifiable” than Matthews Auto Service.  However, Carolina Outdoor fails to provide any specific examples of businesses located on similar sites that were treated differently.  Thus, we find that Carolina Outdoor failed to meet its burden of proof with respect to this issue.  See 25A S.C. Code Ann. Regs. 63-349(M) (Supp. 2004) (“The applicant shall bear the burden of showing that [DOT] should issue the permit.”).

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.


[1]        The name “Matthews” is spelled differently in many places in the record.  Because “Matthews” appears in Carolina Outdoor’s permit applications, we adopt this spelling.

[2]        At the time, the ALC was named the South Carolina Administrative Law Judge Division.