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Commonwealth v. Robards

Court of Appeals of Kentucky

August 30, 2019

COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET APPELLANT
v.
BENJAMIN ROBARDS APPELLEE

          APPEAL FROM BULLITT CIRCUIT COURT HONORABLE RODNEY BURRESS, JUDGE ACTION NO. 15-CI-00709

          BRIEFS FOR APPELLANT: Clayton B. Patrick Frankfort, Kentucky P. Kevin Moore Frankfort, Kentucky

          BRIEF FOR APPELLEE: Joseph J. Wantland Shepherdsville, Kentucky

          BEFORE: GOODWINE, KRAMER AND K. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE

         The Commonwealth of Kentucky, Transportation Cabinet appeals from an order of the Bullitt Circuit Court denying its petition to enforce the final order of the Secretary of the Kentucky Transportation Cabinet requiring Benjamin Robards to remove an advertising device located within 660 feet of interstate 65 (I-65). We conclude that Robards continues to maintain an advertising device in violation of the Kentucky Billboard Act and reverse and remand for an order directing Robards to remove the advertising sign from a semi-trailer.

         The Cabinet is a state agency charged with enforcing the Kentucky Billboard Act, KRS[1] 177.830 et. seq. This case began in the spring of 2013, after the Cabinet learned that Robards placed or allowed to be placed an advertising device on real property he owned located alongside I-65 in Bullitt County. The device consisted of a vinyl sign advertising a quilt outlet draped over a semi-trailer.

         On June 13, 2013, the Cabinet advised Robards in writing that the advertising device must be removed. He was further advised that he could request an administrative hearing if he chose to contest the sign removal. Robards requested an administrative hearing.

         After discovery was conducted, the Cabinet moved for summary judgment on the basis that Robards had no permit for the advertising device on his property and, in fact, under the applicable statutes and regulations, a permit could not be issued for the location in question.

         The following facts were undisputed. The sign is within 660 feet of I-65, is clearly visible from the interstate and tied to the side of a semi-trailer. Robards collects monthly rent of $300 from the individual who owns the House of Quilts for the advertisement. Robards never applied for a permit to erect an advertising device on his property.

         Robards operates a horse farm on the property and uses the semi-trailer for agricultural purposes. Inside the semi-trailer, he stores farm tools, equipment, and hay. From time to time, Robards moves the semi-trailer to other locations on his farm.

         The hearing officer concluded that "hauling and maintaining a trailer to a position parallel to the boundary fence along an interstate and collecting monthly payments for the large advertising sign tied to the outside of the trailer is erecting an advertising device within a protected and prohibited area." The hearing officer recommended that summary judgment be entered in favor of the Cabinet.

         The Secretary of the Transportation Cabinet adopted, in full, the hearing officer's recommended order. Although the final order advised Robards of his right to seek judicial review pursuant to KRS 13B.140, Robards did not seek judicial review of the final order.

         Robards did not remove the vinyl sign from the semi-trailer and this action was filed by the Cabinet requesting that the Bullitt Circuit Court enforce the final order requiring that Robards remove the advertising device and permanently enjoin Robards ...


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