{ "id": 8521304, "name": "ACE-HI, INC. v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF NORTH CAROLINA", "name_abbreviation": "Ace-Hi, Inc. v. Department of Transportation", "decision_date": "1984-09-04", "docket_number": "No. 8310SC1035", "first_page": "214", "last_page": "221", "citations": [ { "type": "official", "cite": "70 N.C. App. 214" } ], "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": "69 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "parenthetical": "interpreting \"shall\" as only directory under circumstances of case" } ], "opinion_index": 0 }, { "cite": "235 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621693 ], "year": 1952, "pin_cites": [ { "parenthetical": "interpreting \"shall\" as only directory under circumstances of case" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0125-01" ] }, { "cite": "244 S.E. 2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "240 S.E. 2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "166 S.E. 2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558315 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0215-01" ] }, { "cite": "196 S.E. 2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558723 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0299-01" ] }, { "cite": "269 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "both applying rules of statutory construction to regulations" } ], "opinion_index": 0 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "year": 1980, "pin_cites": [ { "parenthetical": "both applying rules of statutory construction to regulations" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0381-01" ] }, { "cite": "49 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165185 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0179-01" ] }, { "cite": "196 S.E. 2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "23 U.S.C. \u00a7 111", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1982, "pin_cites": [ { "parenthetical": "requiring federal approval for new points of access" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 136-89.49", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1981, "pin_cites": [ { "page": "(2)", "parenthetical": "\"controlled-access facility\" defined in terms of \"a controlled right or easement of access\"" } ], "opinion_index": 0 }, { "cite": "299 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 745", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523926 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0745-01" ] }, { "cite": "45 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626138 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/228/0301-01" ] }, { "cite": "273 S.E. 2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566689, 8566575, 8566543, 8566611, 8566643 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0400-05", "/nc/301/0400-02", "/nc/301/0400-01", "/nc/301/0400-03", "/nc/301/0400-04" ] }, { "cite": "268 S.E. 2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 10", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548786 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0010-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 136-126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "313 S.E. 2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526434 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0359-01" ] }, { "cite": "180 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-89.58", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 755, "char_count": 14474, "ocr_confidence": 0.815, "pagerank": { "raw": 1.3454190005233898e-07, "percentile": 0.6321248845009882 }, "sha256": "4fa5d80a0f4df0340d3a36d486dd78b8df33d7667ef41a9eb53d74a1a2037bc0", "simhash": "1:91c0df42a87f2b40", "word_count": 2352 }, "last_updated": "2023-07-14T18:14:59.534868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hill and Braswell concur." ], "parties": [ "ACE-HI, INC. v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF NORTH CAROLINA" ], "opinions": [ { "text": "BECTON, Judge.\nAn outdoor advertiser appeals from summary judgment upholding revocation of a sign permit. Finding error in the application of the governing statutes, and finding the evidence insufficient, we reverse.\nI\nThe Department of Transportation (DOT) issued petitioner Ace-Hi, Inc. (Ace-Hi) a permit to erect and maintain an outdoor advertising sign along an interstate highway. On 16 December 1982 a government official observed an Ace-Hi truck parked on the shoulder of the interstate and Ace-Hi employees servicing the sign. DOT regulations allow revocation of sign permits for, among other things, \u201cunlawful violation of the control of access\u201d along interstate highways. 19A N.C. Admin. Code \u00a7 2E .0210(9) (1983). It is unlawful to \u201cwillfully damage, remove, climb, cross or breach any fence\u201d erected for access control, or to park on an interstate right-of-way except in emergency or at designated parking areas. N.C. Gen. Stat. \u00a7 136-89.58(5), (6) (1981). The DOT\u2019s district engineer accordingly revoked Ace-Hi\u2019s permit, citing the violation of the regulation and several previous violations. The Secretary of the DOT affirmed the revocation citing the same facts. On appeal, Ace-Hi presented uncontradicted evidence to the Superior Court that it had never had any prior violations; the violations actually involved another company, Ace Sign. Nevertheless, the court granted summary judgment to the DOT, ruling that it was entitled to judgment upholding the Secretary\u2019s decision. From this order Ace-Hi appeals.\nII\nThe parties do not dispute the facts as outlined above. Rather, the case involves only legal questions of proper exercise of authority and of interpretation of statutes and regulations. Consequently the case was ripe for summary disposition, Kessing v. Nat\u2019l Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971), and on appeal, full appellate review of the legal basis for the judgment is proper. N.C. Reins. Facility v. N. C. Ins. Guaranty Ass \u2019n, 67 N.C. App. 359, 313 S.E. 2d 253 (1984).\nIII\nThe Outdoor Advertising Control Act (OACA), codified at N.C. Gen. Stat. \u00a7\u00a7 136-126 to -140 (1981 and Supp. 1983), contains its own procedure for judicial review, codified at G.S. \u00a7 136-134.1 (1981). Under G.S. \u00a7 136-134.1 (1981), an appellant from the decision and order of the Department of Transportation has the right to a hearing de novo in the Superior Court of Wake County; therefore, appellant is not limited to the administrative record. Nat\u2019l Advertising Co. v. Bradshaw, 48 N.C. App. 10, 268 S.E. 2d 816, disc. rev. denied, 301 N.C. 400, 273 S.E. 2d 446 (1980).\nAlthough the scope of review de novo is broad, In re Wright, 228 N.C. 301, 45 S.E. 2d 370 (1947), the superior court may take action only if the agency decision is \u201c(1) [i]n violation of constitutional provisions; or (2) not made in accordance with [the OACA or the regulations thereunder]; or (3) affected by other error of law.\u201d G.S. \u00a7 136-134.1 (1981). Thus, the superior court has the implied power to reverse when the evidence does not support the decision. Nat\u2019l Advertising Co. v. Bradshaw, 60 N.C. App. 745, 299 S.E. 2d 817 (1983).\nOn appeal to the superior court, Ace-Hi presented substantial and uncontradicted evidence, beyond that in the administrative record, that it had no prior violations and that the DOT\u2019s finding to the contrary was totally unsupported. Rather than make or order new findings, however, the trial court granted summary judgment to the DOT. It ruled that the DOT was \u201centitled to a judgment as a matter of law upholding the Decision and Order of the Secretary of Transportation,\u201d which decision and order contained the unsupported finding. No other evidence suggesting a different theory was introduced by the DOT. To the extent that the trial court\u2019s decision to affirm was based on all three findings of the Secretary, it clearly erred.\nIV\nTherefore, the court\u2019s order was correct only if it disregarded the unsupported finding. This would leave two findings: (1) that the truck had been parked along the interstate and (2) that this violation of access control required revocation of the permit. Are these alone sufficient to justify summary judgment for the DOT?\nA\nG.S. \u00a7 136-133 (1981) requires a permit from the DOT for the erection or maintenance of an outdoor advertising sign. Such permit \u201cshall be valid until revoked for nonconformance with\u201d the OACA or regulations promulgated thereunder. Id. G.S. \u00a7 136-130(3) (1981) empowers the DOT to promulgate rules and regulations for the issuance of permits and for the administrative procedures for appealing agency decisions to revoke permits. Pursuant thereto, the DOT has promulgated the following regulation, 19A N.C. Admin. Code \u00a7 2E .0210 (1983):\nAny valid permit issued for a lawful outdoor advertising structure shall be revoked by the appropriate district engineer for any one of the following reasons:\n(9) unlawful violation of the control of access on interstate, freeway, and other controlled access facilities;. . . . [Emphasis added.]\nAce-Hi allegedly violated \u201ccontrol of access,\u201d causing its permit to be revoked. \u201cControl of access\u201d is not defined in the OACA or the regulations; the federal statutes and regulations also do not provide any definition. A \u201ccontrolled access highway\u201d is defined as one \u201con which access is permitted only at designated access points.\u201d 19 N.C. Admin. Code \u00a7 2E .0201(q) (1983). \u201cAccess\u201d is \u201ca way by which a thing or place may be approached or reached.\u201d Webster\u2019s Third New International Dictionary 11 (1968). \u201cControl\u201d is a means of exercising \u201crestraining or directing influence over\u201d or to \u201chave power over.\u201d Id. at 496. Clearly, then, \u201cviolation of the control of access\u201d must ordinarily mean either some interference with the fences or other barriers along the right of way or the entrance onto or exit from the highway at other than the officially designated points. See N.C. Gen. Stat. \u00a7 136-89.49(2) (1981) (\u201ccontrolled-access facility\u201d defined in terms of \u201ca controlled right or easement of access\u201d); 23 U.S.C. \u00a7 111 (1982) (requiring federal approval for new points of access). A basic rule of statutory construction is that unless the words used therein have acquired some technical meaning or the context otherwise dictates, they must be construed in accordance with their common or ordinary meaning. Lafayette Transp. Service, Inc. v. County of Robeson, 283 N.C. 494, 196 S.E. 2d 770 (1973). The same rule applies to administrative regulations. See States\u2019 Rights Democratic Party v. State Bd. of Elections, 229 N.C. 179, 49 S.E. 2d 379 (1948) and State ex rel. Comm\u2019r of Ins. v. N.C. Rate Bureau, 300 N.C. 381, 269 S.E. 2d 547 (1980) (both applying rules of statutory construction to regulations); 2 Am. Jur. 2d Administrative Law \u00a7 307, at 135-36 (1962).\nWe have reviewed the record with extreme care and have found no evidence (1) that there was an access control fence or other barrier between the sign and the vehicle or (2) that even if there was, that Ace-Hi employees had crossed said fence or barrier. The findings relied upon indicate that the vehicle, not the employees, violated control of access. The only evidence relevant to the vehicle showed simply that it was parked on the shoulder of the highway, not that it had entered the highway at a non-designated point or had crossed any fence or other barrier. Under the common and ordinary meaning of the statute and the regulations, then, the decision of the Superior Court and the DOT cannot be upheld on the evidence in the record.\nB\nThe record indicates that during the hearing on the motion for summary judgment, the DOT \u201cexpanded the definition\u201d of unlawful violation of control of access to include any violation of G.S. \u00a7 136-89.58 (1981). The DOT now argues that summary judgment was accordingly proper, since the truck was parked on the shoulder in violation of G.S. \u00a7 136-89.58(5) (1981), which makes it unlawful \u201cTo stop, park, or leave standing any vehicle, whether attended or unattended, on any part or portion of the right-of-way of said highways, except in the case of an emergency or as directed by a peace officer, or as [sic] designated parking areas.\u201d\nWhen issues of interpretation of statutes or regulations arise, the construction adopted by those who execute and administer them is entitled to consideration. MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E. 2d 200 (1973). However, our courts have always stopped short of ascribing controlling weight to such constructions. See Colonial Pipeline Co. v. Clayton, 275 N.C. 215, 166 S.E. 2d 671 (1969). The primary task of the courts remains to ascertain and adhere to the intent of the Legislature. In re Hardy, 294 N.C. 90, 240 S.E. 2d 367 (1978). We do not believe that the Legislature intended, by its delegation of permit revocation authority to the DOT, to confer such sweeping power as the DOT attempts to exercise here.\nA fundamental rule of construction is that when a literal construction of the statute or regulation would contravene its manifest purpose, the reason and purpose will be given effect and the strict letter disregarded. See In re Banks, 295 N.C. 236, 244 S.E. 2d 386 (1978). G.S. \u00a7 136-133 (1981) provides that a permit \u201cshall be valid until revoked for nonconformance\u201d with the OACA or attendant regulations, and the administrative regulation also indicates that permits shall be revoked upon nonconformance. 19A N.C. Admin. Code \u00a7 2E .0210 (1983) (emphasis added). These provisions, read literally, appear to require automatic and mandatory revocation for any violation of the various grounds of nonconformance. Id. In determining whether a particular provision is mandatory or directory, however, the legislative intent must govern; the purpose of the statute, more so than the particular language selected, controls. N.C. State Art Soc., Inc. v. Bridges, 235 N.C. 125, 69 S.E. 2d 1 (1952) (interpreting \u201cshall\u201d as only directory under circumstances of case). See also 82 C.J.S. Statutes \u00a7 376, at 869-75 (1953). \u201cThe letter killeth, but the spirit maketh alive.\u201d 2 Cor. 3:6.\nWe must determine the legislative intent from the enactment as a whole. In re Banks. In the OACA, the General Assembly express ly found that \u201coutdoor advertising is a legitimate commercial use of private property adjacent to roads and highways,\u201d and declared its intent to \u201cpromote the reasonable, orderly and effective display\u201d of outdoor advertising. G.S. \u00a7 136-127 (1981). (Emphasis added.) The General Assembly recognized that the right to erect outdoor advertising has some compensable value. G.S. \u00a7 136-131 (1981). It took care to provide an extra measure of judicial review of permit revocations. G.S. \u00a7 136-134.1 (1981). And, perhaps most importantly, the enforcement provisions confer upon the DOT the options of criminal sanctions in addition to enforced conformance through injunction or removal (revocation of the permit). G.S. \u00a7 136-135 (1981). These provisions, read together with the sections under consideration, lead to the conclusion that the General Assembly did not intend that revocation be automatic upon nonconformance, and we adopt this construction.\nConsideration of the results attending affirmance of the DOT\u2019s position reinforces our holding. If, as DOT contends, the provisions are mandatory and include any violation of G.S. \u00a7 136-89.58 (1981) absurd and unfair results could follow. For example, it is unlawful to drive upon \u201cany curb\u201d or \u201cdividing line\u201d on said highways. Suppose, for example, that an employee of Ace-Hi, while driving on an interstate around Raleigh, for whatever reason, drove a company truck up onto a curb and off again. Even if no members of the public were in the least inconvenienced or endangered, under the DOT\u2019s interpretation all Ace-Hi sign permits along Interstate 95 would be subject to revocation. We decline to engage in speculation that might lead to other absurd results. In re Banks. Instead, we reaffirm our conclusion, reached earlier, that \u201cviolation of control of access\u201d means some interference with the fences or barriers controlling access or some entrance or exit from the highway at a non-designated point. The DOT\u2019s insistence on automatic revocation for violation of G.S. \u00a7 136-89.58 (1981) under the control of access regulation, and the trial court\u2019s adoption of that position in its grant of summary judgment to the DOT, are thus incorrect. The summary judgment for the DOT must therefore be reversed.\nV\nSince the case is properly in the General Court of Justice for de novo review pursuant to G.S. \u00a7 136-134.1 (1981), and since there is no evidence in the record to support revocation of Ace-Hi\u2019s permit on any of the grounds enumerated in 19A N.C. Admin. Code \u00a7 2E .0210 (1983), it would be pointless to order further proceedings. Therefore, we reverse the order of the Superior Court and remand with instructions for the entry of summary judgment in favor of Ace-Hi.\nReversed and remanded.\nJudges Hill and Braswell concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Thomas H. Davis, Jr., for the State.", "McLean, Stacy, Henry & McLean, P.A., by William S. McLean, for petitioner-appellant." ], "corrections": "", "head_matter": "ACE-HI, INC. v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF NORTH CAROLINA\nNo. 8310SC1035\n(Filed 4 September 1984)\n1. Highways and Cartways \u00a7 2.1\u2014 outdoor advertising sign \u2014 meaning of violation of control of access\nA Department of Transportation regulation pertaining to revocation of a permit for an outdoor advertising sign for a \u201cviolation of the control of access\u201d means either some interference with the fences or other barriers along the right of way or the entrance onto or exit from the highway at other than the officially designated points.\n2. Highways and Cartways \u00a7 2.1\u2014 outdoor advertising sign permit \u2014 revocation for parking on shoulder of highway\nThe General Assembly did not intend, by its delegation of sign permit revocation authority to the Department of Transportation, to confer power on the Department of Transportation to provide for the automatic revocation of a sign permit for any violation of G.S. 136-89.58, and revocation of a sign permit was improper where the evidence showed only that the permittee\u2019s truck was parked on the shoulder of an interstate highway in violation of G.S. 136-89.58(5) while its employees were servicing its sign.\nAppeal by petitioner from John C. Martin, Judge. Judgment entered 7 July 1983 in Superior Court, WAKE County. Heard in the Court of Appeals 8 June 1984.\nAttorney General Edmisten, by Thomas H. Davis, Jr., for the State.\nMcLean, Stacy, Henry & McLean, P.A., by William S. McLean, for petitioner-appellant." }, "file_name": "0214-01", "first_page_order": 246, "last_page_order": 253 }