{ "id": 11914997, "name": "OUTDOOR EAST, L. P., a North Carolina Limited Partnership, Petitioner v. THOMAS J. HARRELSON, as Secretary of Transportation of the State of North Carolina, Respondent", "name_abbreviation": "East v. Harrelson", "decision_date": "1996-09-03", "docket_number": "No. COA94-1303", "first_page": "685", "last_page": "689", "citations": [ { "type": "official", "cite": "123 N.C. App. 685" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "469 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": -1 }, { "cite": "343 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798975 ], "year": 1996, "opinion_index": -1, "case_paths": [ "/nc/343/0303-01" ] }, { "cite": "80 ALR3d 630", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 136-126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "335 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527205, 2529802, 2532082, 2531995, 2528413 ], "year": 1994, "pin_cites": [ { "parenthetical": "\"Whiteco IT" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0565-04", "/nc/335/0565-02", "/nc/335/0565-03", "/nc/335/0565-05", "/nc/335/0565-01" ] }, { "cite": "434 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "237" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 839", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524326 ], "year": 1993, "pin_cites": [ { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0839-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "441 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "\"Whiteco I\"" }, { "parenthetical": "\"Whiteco IT" } ], "opinion_index": 0 }, { "cite": "335 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532352, 2526477, 2532206, 2529831 ], "year": 1994, "pin_cites": [ { "parenthetical": "\"Whiteco I\"" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0566-03", "/nc/335/0566-01", "/nc/335/0566-04", "/nc/335/0566-02" ] }, { "cite": "434 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "231" }, { "page": "234" }, { "page": "233" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 815", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524178 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0815-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 136-130", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "468 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "460 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "891", "parenthetical": "emphasis in original." } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914102 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0072-01" ] }, { "cite": "343 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798975 ], "year": 1996, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0303-01" ] } ], "analysis": { "cardinality": 507, "char_count": 9259, "ocr_confidence": 0.745, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2442096044981773 }, "sha256": "11cac0b5846c3c0100b68bc96332c36fb05460555f8e8b9a15b466c5255a17c5", "simhash": "1:77869d77d53ee478", "word_count": 1417 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and LEWIS concur." ], "parties": [ "OUTDOOR EAST, L. P., a North Carolina Limited Partnership, Petitioner v. THOMAS J. HARRELSON, as Secretary of Transportation of the State of North Carolina, Respondent" ], "opinions": [ { "text": "JOHN, Judge.\nOn 6 February 1996, this Court in an unpublished per curiam opinion, see Outdoor East v. Harrelson (COA94-1303), relied upon the majority opinion in Appalachian Poster Advertising Co. v. Harrington, 120 N.C. App. 72, 460 S.E.2d 887 (1995), to affirm the trial court\u2019s conclusion in the case sub judice that\nthe authority delegated to the North Carolina Department of Transportation pursuant to N.C. Gen. Stat. 136-126, et. seq., does not include the authority to promulgate regulations governing nonconforming outdoor advertising located in areas other than zoned industrial or commercial areas or unzoned commercial or industrial areas, including petitioner\u2019s sign affected herein. . . .\nHowever, on appeal, in Appalachian Poster Advertising Co. v. Harrington, 343 N.C. 303, 303, 468 S.E.2d 554, 555 (1996), our Supreme Court reversed the majority holding in Appalachian \u201c[f]or the reasons stated in the dissenting opinion by Judge Lewis,\u201d and thereafter allowed the petition of respondent herein for discretionary review under N.C.G.S. \u00a7 7A-31 for the limited purpose of remanding the instant case to this Court in light of the Appalachian decision. This Court thereafter granted petitioner\u2019s motion to allow the parties to file supplemental briefs, and we have fully considered same in determining whether the Supreme Court opinion in Appalachian affects our previous opinion.\nPetitioner attempts to distinguish Appalachian on the basis that \u201cin this case there is not the issue of rebuilding or of building a \u2018new sign\u2019 which was the underpinning of Judge Lewis\u2019 dissent in that case.\u201d Therefore, petitioner continues, we should allow our previous holding in this case to survive the reversal of Appalachian and reaffirm that\nDOT has not been delegated authority to regulate the \u201cerection and maintenance\u201d of nonconforming billboards beyond the parameter established in Appalachian allowing DOT to determine when a \u201cnew sign\u201d has been erected and ordering its removal.\nWe disagree.\nIn his Appalachian dissent, Judge Lewis stated that\n[r]ead together, [N.C. Gen. Stat. \u00a7\u00a7 136-130 and 136-133] grant the Department the authority to grant new permits, to revoke existing permits, and to promulgate rules and regulations for this purpose. ... I do not agree [with the majority] that the Department can only regulate signs \u201cpermitted\u201d under N.C.G.S. sections 136-129, 136-129.1, [and] 136-129.2. The Department is given, both directly and implicitly, the authority to determine which signs meet the requirements set forth in these sections and which signs do not. The power to make this determination in essence is the power to regulate.\nAppalachian, 120 N.C. App. at 79, 460 S.E.2d at 891 (emphasis in original.) Accordingly, Judge Lewis concluded the Department of Transportation (DOT) had regulatory power over the nonconforming billboard at issue therein, despite its location in a noncommercial/nonindustrial area, and thus DOT was authorized to revoke the permit of Appalachian Poster Advertising pursuant to N.C. Admin. Code tit. 19A, r. 2E.0210(6) and (12) (\u201cAny valid permit issued for a lawful outdoor advertising structure shall be revoked by the appropriate district engineer for any one of the following reasons: .... (6) [any] alterations to a nonconforming sign . . . and (12) abandonment, destruction, or discontinuance of a sign ....\u201d).\nWe find persuasive respondent\u2019s contention that the language of Judge Lewis\u2019 dissent does not simply address conversion of \u201cgrandfathered\u201d billboards into new billboards, but rather speaks to \u201cDOT\u2019s regulatory authority over all nonconforming signs in noncommercial/nonindustrial areas.\u201d Moreover, because we have previously determined the \u201cdispositive issue . . . [of] whether DOT was authorized to regulate petitioner\u2019s nonconforming sign, located in a noncommercial/nonindustrial area and in existence prior to enactment of the [Outdoor Advertising and Control Act,]\u201d to be \u201cnearly identical\u201d to the issue resolved by Appalachian, see Outdoor East (COA94-1303, filed 6 August 1996), petitioner\u2019s attempt to distinguish the two cases is unfounded. Therefore, in that our Supreme Court adopted Judge Lewis\u2019 dissent in Appalachian, we conclude herein that DOT had the authority to revoke petitioner\u2019s permit pursuant to N.C. Admin. Code tit. 19A, r. 2E.0210(9) (\u201cAny valid permit. . . shall be revoked for ... (9) unlawful violation of the control of access on interstate, freeway, and other controlled access facilities.\u201d), and that the trial court erred in concluding as a matter of law that DOT lacked such authority.\nPetitioner nonetheless asserts a contention raised in its cross-appeal, i.e., that \u201cthe trial court erred in finding that petitioner\u2019s outdoor advertising permit can be revoked based on the illegal conduct of its advertiser\u2019s employees.\u201d This contention cannot be sustained.\nIn Whiteco Industries, Inc. v. Harrelson, 111 N.C. App. 815, 434 S.E.2d 229 (1993), disc. review denied and appeal dismissed, 335 N.C. 566, 441 S.E.2d 135 (1994) (\u201cWhiteco I\u201d), the trial court awarded petitioner counsel fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1 based upon its determination that respondent DOT was not substantially justified in revoking petitioner\u2019s outdoor advertising permit. Id. at 817, 434 S.E.2d at 231. However, this Court reversed, holding \u201cDOT was [indeed] substantially justified in revoking petitioner\u2019s permit,\u201d because petitioner, owner of the billboard, had violated N.C. Admin. Code tit. 19A, r. 2E.0210(8) when employees of its advertiser unlawfully destroyed ten trees on the highway right of way in front of the sign. Id. at 821, 434 S.E.2d at 234. \u201cTo accept [petitioner\u2019s] argument\u201d that it should not be found responsible for its advertiser\u2019s employees\u2019 violation of the regulation, the Court continued,\nwould be tantamount to inviting circumvention of the law, and we reject it. Petitioner\u2019s responsibility to abide by DOT\u2019S requirements . . . did not end when it leased billboard space to a third party, and it is not excused when an agent of the third party violates those requirements.\nId. at 821, 434 S.E.2d at 233. See also companion case of Whiteco Industries, Inc. v. Harrington, 111 N.C. App. 839, 844, 434 S.E.2d 234, 237 (1993), disc. review denied and appeal dismissed, 335 N.C. 565, 441 S.E.2d 135 (1994) (\u201cWhiteco IT) (substantial justification for permit revocation existed upon violation of N.C. Admin. Code tit. 19A, r. 2E.0210(9) by employee of advertiser who crossed control of access fence).\nPetitioner\u2019s arguments notwithstanding, the foregoing cases cannot be distinguished from that sub judice, nor do we find merit in petitioner\u2019s assertion that language in the Whiteco opinions holding a sign owner responsible for actions of employees of the owner\u2019s advertisers \u201cis dicta which can, and should, be rejected by this Court.\u201d As in Whiteco I and Whiteco II, petitioner herein had the\nresponsibility to abide by DOT\u2019s requirements . . . [which] did not end when it leased billboard space to a third party, and it is not excused when an agent of the third party violates those requirements.\nSee Whiteco I at 821, 434 S.E.2d at 233. Accordingly, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d) (citations omitted), we hold the trial court properly ruled \u201cpetitioner\u2019s [outdoor advertising] permit can be revoked\u201d based upon the illegal conduct of its advertiser\u2019s employees.\nBased on the foregoing, we affirm that portion of the trial court\u2019s order determining petitioner\u2019s permit subject to revocation in consequence of illegal acts by employees of its advertiser. However, the judgment of the trial court decreeing that the \u201cfinal decision of respondent... was not made in accordance with the statutory authority contained in N.C. Gen. Stat. \u00a7 136-126 et. seq.\u201d is reversed. Further, this Court\u2019s opinion in Outdoor East v. Harrelson (COA94-1303, filed 6 February 1996) is vacated.\nAffirmed in part; reversed in part.\nJudges EAGLES and LEWIS concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Wilson & Waller, by Betty S. Waller, Kenneth G. Haywood and Brian E. Upchurch for petitioner.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Grayson Kelley and Associate Attorney General Melanie Lewis Vtipil, for respondent." ], "corrections": "", "head_matter": "OUTDOOR EAST, L. P., a North Carolina Limited Partnership, Petitioner v. THOMAS J. HARRELSON, as Secretary of Transportation of the State of North Carolina, Respondent\nNo. COA94-1303\n(Filed 3 September 1996)\nHighways, Streets, and Roads \u00a7 31 (NCI4th)\u2014 billboards\u2014 authority of DOT to regulate\nThe Department of Transportation had the authority to regulate all nonconforming billboards in noncommercial/ nonindustrial areas, including those erected prior to enactment of the Outdoor Advertising Control Act.\nAm Jur 2d, Advertising \u00a7\u00a7 8, 24-29.\nClassification and maintenance of advertising structure as nonconforming use. 80 ALR3d 630.\nOn remand from the Supreme Court in light of its decision in Appalachian Poster Advertising Go. v. Harrington, 343 N.C. 303,469 S.E.2d 554 (1996).\nWilson & Waller, by Betty S. Waller, Kenneth G. Haywood and Brian E. Upchurch for petitioner.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Grayson Kelley and Associate Attorney General Melanie Lewis Vtipil, for respondent." }, "file_name": "0685-01", "first_page_order": 719, "last_page_order": 723 }