Honoring CSA’s Legislative Efforts – 30+ Years Proud
Building on legislative success in 1983, which resulted in a requirement that just compensation be paid for compelled removal of on-premise signs, in 1986 – 30 years ago – CSA commenced another extraordinary effort to save signs from removal based on height and size when special topographic circumstances exist.
Under the leadership of Leo March (Integrated Sign) and legal counsel Robert Aran, CSA was able to secure passage of Business & Professions Code section 5499.
Section 5499 provides:
“Regardless of any other provision of this chapter or other law, no city or county shall require the removal of any on-premises advertising display on the basis of its height or size by requiring conformance with any ordinance or regulation introduced or adopted on or after March 12, 1983, if special topographic circumstances would result in a material impairment of visibility of the display or the owner’s or user’s ability to adequately and effectively continue to communicate with the public through the use of the display. Under these circumstances, the owner or user may maintain the advertising display at the business premises and at a location necessary for continued public visibility at the height or size at which the display was previously erected and, in doing so, the owner or user is in conformance.”
Recent Court Rulings: Commercial Speech and the City of Los Angeles
Several recent court rulings reiterate that commercial speech regulations, including signage restrictions based on content, are subject to “heightened scrutiny” evaluation and that government carries the burden of showing that the challenged regulation advances the Government’s interest in a direct and material way. “That burden is not satisfied by mere speculation or conjecture.” Rather, to survive scrutiny “a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”
Under both California and Federal law, an onsite/offsite distinction is lawful, provided it does not regulate the content of the message, i.e., that differentiating between onsite and offsite signs does not constitute a content-based distinction. In addition, the court succinctly explained and reiterated the longstanding guidance of Central Hudson on how to assess sign regulations. In sum, significantly for the sign industry, the effect is that the status quo has been preserved.
CSA and ISA continue to work diligently with the city to bring finality to this matter. Along the way, CSA, working with the billboard industry, had to fend off legislation proposing a statewide moratorium on digital signs (legislation penned by the current LA city attorney), as well as re-educate several times new council members and staffers, including a new Planning Director. CSA and ISA retained the services of local lobbyists to assist with the endeavor.
What is the Lamar case about – and why is it important?
In the one of the lawsuits, Lamar v. City of Los Angeles (initially decided in 2015), a state lower court judge ruled, among other points, that under the California Constitution there was no material difference between an onsite sign and an offsite sign, and the billboard ban was thus unconstitutional (a result contradictory to prior federal court rulings based on the US Constitution). The City appealed, and in an unusual twist, CSA and ISA filed “amicus” friend of the court briefs supporting the city (as did several Planning groups). CSA/ISA’s position was that if the appellate decision were upheld on appeal in favor of Lamar, it would seriously undermine California’s on-premise sign laws (sponsored by CSA 30 years ago), as well as result in an
unrestricted proliferation of billboards, i.e., potentially every sign could be used for offsite advertising, jeopardizing the entire on-premise industry, and subjecting on-premise signs along
the highway to Caltrans regulation.
Read More – Full CSA Legal and Legislative Update (PDF)
May a City require CEQA approval for On-Premise Signs?
There is an express exemption under CEQA for on-premise signs. Public Resources Code Section 21084 includes a list of classes of projects “which have been determined not to have a significant effect on the environment and which shall, therefore, be exempt from the provisions of CEQA.” See 14 Cal Code of Regulations Section 15300, et seq (CEQA Guidelines).
Pursuant to 14 CCR Section 15311, dealing with Accessory Structures (Class 11), on-premise signs are categorically exempt and a negative declaration should issue. The authority cited for this provision is Public Resource Code sections 21083 and 21087.
New Worker’s Comp Burden May Affect Sign Contractors
AB 1897, signed by the Governor in September, is intended to combat the underground economy, by making a party who hires labor through “labor contractors” also responsible for wages and the purchase of Worker’s Compensation coverage.
- The bill will take effect January 1, 2015.
- The bill applies to “client employers”, defined as a business entity that is provided workers to perform labor within its “usual course of business” from a “labor contractor”.
Legality of Moratoriums
State law allows 45-day moratoriums (“interim ordinances”) on permit approvals when there is an immediate threat to public health, safety or welfare. Often abused by cities and counties which seem to make very loose findings, a moratorium can be extended for two years. Although an interim ordinance may prohibit development of land uses that conflict with a general or specific plan or pending zoning ordinance, the interim ordinance cannot prohibit the processing of development applications. In other words, the city still must process your application.
What constitutes an immediate threat to public health, safety or welfare is a debate applicants often miss out on, because the issues frequently arise on short notice. Even though a city might give notice of a hearing, by the time we learn about the interim ordinance it’s been adopted. Rarely, however, would or should a sign application trigger an immediate threat to public health, safety or welfare.
ADA Shakedown Protection
This article will bring you up to date on the most important elements of the “attorney shakedown protection” bill.
Attorney shakedown protection: Several years ago, the Legislature passed SB 1186, which prohibits pre-litigation “demands for money” by attorneys; puts into place new provisions to prevent “stacking” of multiple claims to increase statutory damages; reduces statutory damages and provides litigation protections for defendants who correct violations; and establishes priorities for the California Commission on Disabled Accessibility that promote and facilitate disability access compliance. Here are some more specifics on the main provisions of the bill:
Dynamic Signage Considerations
Certainly Dynamic Digital signage is a market that has been percolating for a while. The massive economic downturn stymied many manufacturers and audio-visual professionals: They could not find a receptive market. Today, prices have dropped dramatically and it seems nearly every business can utilize these wayfinding / advertising/ informational screens. But to serve this market, a few technicalities must be mentioned. For example, electronic waste. As you replace old display screens, California has some rules you must observe.
Fight the Underground Economy
Licensed sign companies in California are competing against unlicensed sign manufacturers and installers. The California Sign Association works with the California Contractors State License Board and other regulatory agencies to eliminate the unlicensed companies. If you are aware of illegal and unlicensed installations of signs, you can help solve the problem by notifying the Statewide Investigative Fraud Team (SWIFT) of the CSLB. If you don’t want to directly participate, CSA will accept and transmit the information on your behalf.
The best way to let CSLB know about unlicensed activity on an active job site is by completing the SWIFT Lead Referral form. Use the link below.
Top 10 Contracting Errors
10 Sign Contractor Errors that Could Land You in Jail
This is one of CSA’s most popular resource pages. The California Sign Association lawyer, Jeff Aran, receives many inquiries related to sign contracting and contractor law in California. Here are some of the most common (and surprising) errors made.
Believe it or not, each of the following actions are potentially misdemeanors under California law, which might result in a jail sentence, monetary penalties and/or disciplinary proceedings and license suspension. Continue Reading
Progress on Bill for Tax Extenders
U.S. House of Representatives recently passed d H.R. 4457, the “America’s Small Business Tax Relief Act of 2014”. This bill would make permanent Section 179 expensing at the levels that had expired at the end of 2013, i.e., a $500,000 expensing allowance and a $2,000,000 investment cap. Continue Reading