Tenn. Code Ann. § 54-21-105
Failure to comply with § 54-21-104 — Effect
Redline — September 1, 2020 → current.View current text →
Current — September 30, 2020
As of September 1, 2020
(1) Any person, either owner or lessee, of any outdoor advertising who has failed to act in accordance with § 54-21-104 shall remove the outdoor advertising immediately.
(1) Any owner of any outdoor advertising device who has failed to act in accordance with § 54-21-104 must remove the outdoor advertising device immediately.
(2) Failure to remove the outdoor advertising shall render the outdoor advertising a public nuisance and subject to immediate disposal, removal or destruction.
(2) Failure to remove the outdoor advertising device renders the outdoor advertising device a public nuisance and subject to immediate disposal, removal, or destruction.
(3) In addition, the failure constitutes a Class C misdemeanor. Each separate day of violation constitutes a separate offense.
(3) In addition, the commissioner has the authority to assess and collect from the owner a civil penalty in the amount of five hundred dollars ($500) for each calendar day after the date that the owner is determined through a contested case hearing to have failed to act in accordance with § 54-21-104. The total amount of the civil penalty imposed each year must not exceed five thousand dollars ($5,000).
(4) In addition, or in lieu of subdivisions (a)(1)-(3), the commissioner may enter upon any property on which outdoor advertising is located and dispose of, remove, or destroy the outdoor advertising, all without incurring any liability for those actions.
(4) In addition, or in lieu of subdivisions (a)(1)-(3), the commissioner may enter upon any property on which an outdoor advertising device is located and dispose of, remove, or destroy the outdoor advertising device, all without incurring any liability for those actions.
(5) Prior to invoking the provisions of this section, the commissioner shall give notice either by certified mail or by personal service to the owner of the sign, or occupant of the land on which the advertising structure is located. The notice shall specify the basis for the alleged unlawfulness, shall specify the remedial action that is required to correct the unlawfulness and shall advise that a failure to take the remedial action within thirty (30) days shall result in the sign being removed. For good cause shown, the commissioner may extend the thirty-day period for remedial action for up to an additional one hundred fifty (150) days, so long as all advertising content is removed from the unlawful device within the thirty-day period. If advertising content is placed on the device during any extended period, the device may be immediately removed by the commissioner without further notice. The owner of the structures shall be liable to the state for damages equal to three (3) times the cost of removal, in addition to any other applicable fees, costs or damages, but the owner of the land on which the sign is located shall not be presumed to be the owner of the sign simply because it is on the owner's property.
(5) Prior to invoking this section, the commissioner shall give notice either by certified mail or by personal service to the owner of the outdoor advertising device or occupant of the land on which the outdoor advertising device is located. The notice must specify the basis for the alleged unlawfulness, the remedial action that is required to correct the unlawfulness, and advise that a failure to take the remedial action or request a hearing within forty-five (45) days results in the sign being subject to removal. In addition, the commissioner must give, or have previously given, the owner or operator of the outdoor advertising device an opportunity to request a contested case hearing in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to determine the lawfulness of the outdoor advertising device. For good cause shown, the commissioner may extend the forty-five-day period for remedial action for up to an additional one hundred fifty (150) days, so long as all advertising content is removed from the unlawful outdoor advertising device within the forty-five-day period. If advertising content is placed on the outdoor advertising device during any extended period, the outdoor advertising device may be immediately removed by the commissioner without further notice. The owner of the outdoor advertising device is liable to the state for damages equal to three (3) times the cost of removal, in addition to disgorgement of any profit and gains or benefit derived from the violation and any other applicable fees, costs, or damages. The owner of the land on which the outdoor advertising device is located shall not be presumed to be the owner of the outdoor advertising device simply because it is on the owner's property.
(6) In addition to any other action authorized in this section, the commissioner shall not issue or transfer any outdoor advertising permits or tags, or issue annual renewal permits for any existing outdoor advertising devices, subject to the limitations set forth in subdivision (c)(5), to any person who has erected a new outdoor advertising device at a new location without first obtaining a permit and tag as required under § 54-21-104, or issue any permits or tags to any other person acting in affiliation with that person, until either: The person has removed the unlawful outdoor advertising device within the time period established in the notice given by the department, or any extension of that time period, as provided in subsection (b); or
(7) In the event the department has removed the device, the person has made full payment to the department in the amount of three (3) times the cost of removal, as well as payment of any other fees, costs or damages, as provided in subsection (b).
(8) Solely for the purpose of applying and enforcing the sanctions established in this subsection (c): “Acting in affiliation with” means any person who, with respect to any violation or request for a permit or tag, or both, as described in subdivision (c)(1), acts in concert with or under the direct or indirect control of, or who has the power to control, any person who has erected an outdoor advertising device in violation of this subsection (c);
(9) “New outdoor advertising device” means any outdoor advertising device erected on or after April 1, 2009; and
(10) “New location” means any location adjacent to a highway on the interstate system or primary system and subject to regulation by the department as provided in this chapter for which the person erecting an outdoor advertising device does not then possess a current permit issued by the department for each sign face of the device; provided, however, that the sanctions established in this subsection (c) shall not apply if the person erecting a new outdoor advertising device then possesses a current permit from the department for each sign face of the device at a different location on the same side and at the same log mile of the highway where the new device is erected, but the person either has failed to erect the device at the actual permitted location or has removed a device from the permitted location.
(11) This subsection (c) shall not apply to any existing outdoor advertising device that, at the time it was erected, did not require a permit from the department under this chapter, even though the device may subsequently require a permit from the department due to changed conditions at the location or within the vicinity of the device.
(12) The additional sanctions provided in this subsection (c) shall not apply to a person who purchases an unlawful outdoor advertising device subsequent to its erection, so long as the person purchasing the device did not erect the device or act in affiliation with the person who erected the device.
(13) The commissioner shall not apply this subsection (c) as cause for refusing to issue an annual renewal permit to any person prior to the expiration of one hundred eighty (180) days from the date of initial notice of violation given to the person pursuant to subsection (b).
(14) Under this subsection (c), nonrenewal of any person's existing permits for outdoor advertising devices shall be applied on a graduated basis based on the number of violations as provided in this subdivision (c)(5)(B). Each separate outdoor advertising structure erected without a permit shall be considered a separate violation. The department shall choose, in its absolute discretion, which existing permits shall be subject to nonrenewal and voiding. For the first violation of erecting an outdoor advertising device without a permit, the person shall forfeit the same number of permits as the number of unlawful sign faces on the unpermitted device; i.e., one (1) permit for one (1) unlawful sign face, two (2) permits for two (2) unlawful sign faces, etc.;
(15) For the second violation, the person shall forfeit twice the number of permits as the number of unlawful sign faces on the unpermitted device; and
(16) For the third and any subsequent violation, the person shall forfeit four (4) times the number of permits as the number of unlawful sign faces on the unpermitted device.
(17) In the event that an existing outdoor advertising device is not issued an annual renewal permit in accordance with this subsection (c), after notice has been given in accordance with subsection (b), the permit for the existing device shall be voided, subject to the opportunity for a contested case hearing in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and the device shall be subject to removal as an unlawful outdoor advertising device by any means authorized in § 54-21-105.
(18) All gross revenues received or payable from the operation of any outdoor advertising device erected without first obtaining a permit as required under § 54-21-104 are subject to being forfeited to the state and placed in the highway fund for the administration of this chapter or any other purpose authorized under § 54-21-106. For the enforcement of this subdivision (c)(7), the department may file a petition in the chancery court for the county in which the unlawful outdoor advertising device is or was located or in the county where the person erecting the device resides. In such case, the jurisdiction of the chancery court shall be limited solely to the authority to issue appropriate orders for the enforcement of this subdivision (c)(7), including, without limitation, the authority to establish a constructive trust for an accounting and receipt of revenues obtained from the operation of the unlawful outdoor advertising device.
(19) This subsection (c) shall be construed to accomplish the purposes of this section both to deter unlawful conduct and to prevent any person from benefitting from unlawful conduct or evading the sanctions authorized in this subsection (c). The sanctions authorized in subsection (c) shall not be construed to apply in any circumstance other than as expressly authorized by the general assembly in this subsection (c).
(20) Notwithstanding any other law to the contrary, in any case or controversy arising from any regulatory or enforcement action taken by the commissioner or department under § 54-21-105 or this chapter, wherein any cause of action, claim, counterclaim, cross-claim or any other claim or request for remedy whatsoever is asserted against the state, the commissioner, the department or any official or employee thereof, jurisdiction shall be vested exclusively in the chancery court for Davidson County; provided, that any contested case hearing with respect to the issuance, denial, nonrenewal or voiding of any outdoor advertising permit shall remain under the jurisdiction of the commissioner in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(21) It shall be no defense to any enforcement action taken under § 54-21-105 that the person who erects or operates an outdoor advertising device without first obtaining a permit and tag as required under § 54-21-104 may then have a pending contested case proceeding under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, in which the person's entitlement to a permit for the outdoor advertising device is at issue.
(6) If the department has reason to believe that a sign is being operated, in whole or part, as an outdoor advertising device without first obtaining a permit as required under § 54-21-104, the department may issue an investigative request to the owner or operator of the sign, the owner of the property, or any other person for the purpose of obtaining relevant documents or information to determine whether the sign is being operated as an outdoor advertising device.
(7) If, after being served with an investigative request by the department under subdivision (c)(1), the person provides the requested documents or information and the department determines that the sign is being operated as an outdoor advertising device in violation of §§ 54-21-103 and 54-21-104, the department shall issue a written order to the owner or operator of the outdoor advertising device explaining the basis for determining that the sign is an outdoor advertising device and directing the owner or operator of the device to remedy the violation by applying for the applicable outdoor advertising device permit, or by removing the unlawful device, as appropriate, by the date set forth in the order, which shall be no less than sixty (60) days after the date of the order.
(8) The person may appeal the department's order under subdivision (c)(2) by filing a written notice of appeal with the department within thirty (30) days of the date on which the order is issued. If an appeal is timely filed with the department, the department shall initiate a contested case proceeding under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to hear the person's appeal.
(9) If a person fails to comply with the department's investigative request under subdivision (c)(1), or if the department reasonably believes the documents or information provided are incomplete or inaccurate, the department may initiate a contested case proceeding under the Uniform Administrative Procedures Act to compel the production of relevant documents or information and to determine whether the outdoor advertising device is being operated in violation of §§ 54-21-103 and 54-21-104 and therefore subject to enforcement action under § 54-21-105.
Current official text: Tennessee Code (LexisNexis). Digitized from the UniCourt Code Improvement Commission public-domain capture. Reproduced from public-domain Tennessee statutes; confirm against the official source for the current text. Not legal advice.