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Unpublished Opinion No. 2005-UP-072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.