10 Sign Contractor Errors that Could Land You in Jail!
State Regulations and Laws Crane Safety and DIR Rules
Requirements for permits, registrations, certifications and notifications
ARB Will Recognize Good Faith Efforts to Comply and Provide aryl Access to Expected Regulatory Changes
By Jeff Aran, CSA Government Affairs Director
ADA REFORM SIGNED BY GOVERNOR!
This is the culmination of a multi-year, bipartisan effort, that included leadership from state level elected officials Senate pro Tem Darrell Steinberg (D-Sacramento) and Senator Bob Dutton (R-Rancho Cucamonga), with federal support coming from Senator Dianne Feinstein (D-CA).
This bill is being hailed as the most comprehensive and significant reform to California’s ADA Law. It passed the Legislature by a two-thirds vote in the wee hours of the final session. Currently, California has 40 percent of the nation’s ADA lawsuits but only 12 percent of the country’s disabled population.
Among other things, this measure 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:
(Source: Cal Chamber of Commerce)
By Jeff Aran, CSA Government Affairs Director
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.
In order to adopt an “interim ordinance,” the public entity must make certain findings. First, there must be an “immediate threat.” If the existing ordinance allows them or doesn’t prohibit them, it’s hard to imagine any circumstance where the mere application for an EMC (or any other sign type proposed to be restricted) could possibly constitute an “immediate threat.” There simply is nothing about a pending sign application that makes it a threat of any kind.
What typically happens, of course, is that the planner involved doesn’t want this type of signage in the community; so, when the application comes in, the applicant is discouraged from submitting because “they’re not allowed.” Then, no surprise, next we hear of an interim ordinance banning them or requiring the planning department to further “study” and report to the city council within 45 days. After that time, while your application gathers dust or is lost in the planning graveyard, the PD returns to the council and requests that the ban be made permanent.
Government Code Section 65858 in pertinent part provides:
So, What’s a “Current and Immediate Threat”?
In Crown Motors v. City of Redding, a 1991 case (pre-LED), the court held: “Concerning whether erection of one more electronic reader boards in Redding justified the urgency provision, we defer to legislative wisdom. Having already determined the city council could regulate aesthetics under the rubric of public health, we cannot profitably consider the minutiae of degree in the subjective realm of aesthetics. The city council, as the elected representative legislature of Redding, determined Crown Motors’s reader board would be aesthetically displeasing and harmful to the public health. This is a subjective determination the city council may make based on its power to declare the aesthetic will of Redding. The courts have no such power. Thus, we sustain the city council’s determination the threatened erection of one more electronic reader boards justified the urgency provision.”
Generally, mere application for a lawful use authorized by the existing municipal code should not constitute a current and immediate threat. Although cities and counties are apt at making the “urgency” argument, the courts have held that if the city or county nonetheless targets the code specifically to frustrate a particular applicant’s plans, the applicant should be entitled to the permit (so long as not inconsistent with an existing land use plan adopted by the jurisdiction). Otherwise, government could always cure denial of a permit by merely changing an ordinance prior to judicial review. However, the courts have also held that a zoning ordinance may be applied retroactively if reasonably necessary to protect public health and safety.
Key to Success
CSA is a unified voice of professionals dedicated to the evolving needs of the California signage and visual communications industry. That’s our Vision statement. Now, let’s carry that message to the communities we serve.
ACCESSIBILITY Update -- California to amend ADA Signage Standards for Consistency with Federal rules
DSA is preparing draft language for the update of the accessibility regulations in Chapter 11B of the California Building Code. The goal for the 2013 accessibility codes is an integrated document code using the format of the ADA with the most stringent requirements from either the current 2010 California code or the 2010 ADA Standards.
The State Architect has adopted an emergency rulemaking and decided to undertake an overhaul of California’s building standards for disabled accessibility. DSA will rely upon the recently revised federal regulations as the basis for California’s code, including signs. Those regs where California is more stringent than the federal mandate will be clearly identified in a future publication. This will hopefully eliminate conflicting standards and help reduce the predatory drive-by lawsuits that have plagued business over the years. CSA continues to track this regulatory effort; we will keep you posted.
What should you do now? Follow the Federal guidelines for signage. As stated in Rulemaking document --
"While most of the differences can be handled by applying the most stringent of the state or federal requirements to the design, construction and alteration of facilities, there are a limited number of instances where compliance with the State standards would be a violation of the corresponding federal requirements. This would also trigger California Civil Code Section 54.1 (d) which states “A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section, and nothing in this section shall be construed to limit the access of any person in violation of that act.”
"Without prompt action the untenable situation of building owners being unable to construct or alter their facilities in full compliance with state and federal accessibility regulations would persist for more than 18 months until the 2013 CBC goes into effect. The Emergency Regulations will resolve these irreconcilable conflicts, eliminate uncertainty about the requirements and increase compliance with both state and federal regulations."
Here are the relevant, excerpted sections on signs and mounting height from the findings --
ITEM 6: 1117B.5 -- Signs and identification, 1117B.3 & 1117B.5
These sections currently provide character proportions and stroke width requirements of fonts
Summary of Effect
Statement of Comparable Federal Statue or Regulations
ITEM 7: 1117B.5.7-- Mounting location and height.
The CBC currently requires identification signs with tactile text to be mounted 60 inches above the finish floor to the centerline of the sign.
Summary of Effect
Statement of Comparable Federal Statue or Regulations
Caltrans -- Currently is still seeking input from stakeholders with regard to amendments to regulations. Nothing formal proposed as yet, but much discussion is occurring among staff pertaining to implementation of new rules for off-premise signs in redevelopment projects. Please contact Jeff Aran at 916-395-6000 or email@example.com if you have any suggestions.
Storm Water Discharge -- New rules are in the offing which would establish new requirements beyond EPA mandates. Due to CSA efforts many years ago, we were able to secure exemption based on the SIC. The draft regs may require a certification of “no discharge” be filed in order to obtain the exemption
By Jeff Aran, Legal Counsel
There is an express exemption under CEQA for on-premise signs. Public Resources Code
Pursuant to 14 CCR §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.
The EIR process requires first the local agency to determine whether the project is exempt. Second, if it is not exempt, an initial study must be conducted to determine whether the project may significantly affect the environment. If there is no significant effect, a “neg dec” is prepared. If there is a significant impact, an EIR is prepared. A project not otherwise exempt may nonetheless be found to be excepted under the “common sense” exception for projects where it is shown that there is no possibility that the activity may have a significant impact on the environment. 14 CCR §15061(b)(3).
Some planners nonetheless call for an EIR to be prepared based on the erroneous conclusion that because §15311 refers to “minor structures,” certain on-premise signs, based on their height and size, are not included within the categorical exemption. However, neither State law nor the CEQA guidelines recognize such distinction. Moreover, “minor” within the context of CEQA does not relate so much to the height and size, but to the environmental impact caused by the activity.
In McQueen v. Mid-Peninsula (1988) 202 Cal.App.3d 1136, the court held that the categorical exemptions are to be strictly construed and may not used when there is substantial evidence of unusual circumstances resulting in significant impacts which threaten the environment. Unless and until a city or county can demonstrate such unusual circumstances or can show substantial harm threatened to the environment, an EIR should not be required.
In cases where the agency already approved the project, any existing or prior EIR on that project would apply to the sign permit. Moreover, any purported harm to the environment would have already been addressed by the prior land use approval. The regs require the local agency to use previously prepared EIRs, so that a secondary project qualifies for a negative declaration. 14 CCR §15006. Regardless of sign’s size, once the land use was allowed originally, a second EIR is not necessary. If a negative declaration issued initially, then that should also apply to a subsequent application for a new sign. If an existing sign is being replaced, there will be no changed environmental impact justifying an EIR.
The CEQA Guidelines further provide that public agencies “may not require EIRs for projects described in the [exempt] classes,” except: (a) when the project is “in a particularly sensitive environment . . . where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law . . .,” (b) when the cumulative impact of successive projects of the same type in the same place over time is significant, or (c) when there is a “reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” CEQA Guidelines, 14 CCR §§ 15300.2, 15300.4. None of these factors usually exist, if ever, with regard to sign installations.
Courts have held numerous projects to have no significant impact on the environment, including street-widenings, building permits for construction of new houses on existing lots, condemnation of property, and expansion of parking zones, to name just a few. All these projects have in common a pre-existing use or activity. Significantly, no court has held that a sign – of any dimension – poses a significant impact on the environment.
This is so because an agency must prepare an EIR when it finds substantial evidence that the project may significantly affect the environment. 14 CCR §15064. “Environment” is defined as the “physical conditions that exist within the area which will be affected by a proposed project including land, air, water, minerals, flora , fauna, ambient noise, and objects of historic or esthetic significance,” including natural and man-made conditions. 14 CCR §15360.
Unless the proposed sign is being installed in a vernal pool, it’s hard to imagine how construction of a sign, regardless of height, would significantly negatively affect the “environment” factors. Given that the primary land use is well established, the city simply cannot require an EIR without first identifying some potential significant environmental harm caused by the sign’s construction.
Further, under State law, any fee charged for the issuance of the “neg dec” must not exceed the reasonable value of the service rendered. Gov Code §66014. Since on-premise signs are categorically exempt, there should be no fees charged in this regard.
For more information, call Jeff Aran at 916.395.6000
Be a Bandit Buster!
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 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.
For unlicensed activity performed in the counties of Imperial, Kern, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura send your form to:
Norwalk SWIFT Unit
For unlicensed activity performed in all other counties in California, send your form to:
Sacramento SWIFT Unit
Please provide complete and detailed information about the unlicensed activity and indicate if there are employees on the project. The more information and evidence the better.
Complaints are processed according to the date of receipt, priority and staff availability if the job site is located in a remote area. The complaint will be assigned to an Enforcement Representative who will follow up on the information provided.
Monitor the latest information from the California Air Resources Board (ARB) regarding the On-Road Heavy-Duty Diesel Vehicles rules and regulations at http://www.arb.ca.gov/msprog/onrdiesel/onrdiesel.htm.
Caltrans has developed a revised permit application. Download [pdf]
Caltrans: Proposed Regulatory Changes to the Outdoor Advertising Act Disapproved
Proposed regulatory amendments were rejected by the Office of Administrative Law. Not surprisingly, OAL chastised the department for its failure to follow procedure, fully respond to questions and issues raised by stakeholders, and properly notify the public. Whether Caltrans resubmits remains to be seen, but, regardless, hopefully this time they’ll pay attention.
Title 24 Information
2008 Standards – The requirement for when the 2008 standards must be followed is dependent on when the application for the building permit is submitted. If the application for the building permit is submitted on or after 1/1/10, the 2008 standards must be met
How RoHS Laws Affect You & Your Sign Company
The Electronic Waste Recycling Act (EWRA) (SB 20, Sher 2003) required the Department of Toxic Substances Control (DTSC) to adopt regulations to prohibit covered electronic devices “from being sold or offered for sale” in California if they are prohibited from sale in the European Union (EU) under Directive 2002/95/EC, “Restriction of the Use of Certain Hazardous Substances”, or RoHS. The EU’s RoHS prohibits the sale of certain electronic devices if they contain heavy metals in concentrations above specified regulatory limits.
As of January 1, 2007 DTSC has adopted RoHS regulations that will restrict the use of lead, mercury, cadmium, and hexavalent chromium in certain electronic devices sold in California. These new regulations have banned the sale of some electronic devices that contain certain hazardous substances.
California’s RoHS law applies only to a “covered electronic device”, which is defined in statute as “a video display device containing a screen greater than four inches, measured diagonally, identified in the regulations adopted by [DTSC]”. DTSC had identified covered electronic devices in its regulations to include:
DTSC has not listed electric signs in its regulations. Therefore these electronic devices are not "covered electronic devices" and are not subject to the Electronic Waste Recycling Act.
For the California's Restriction on the Use of Certain Hazardous Substances in Some Electronic Devices (RoHS) | Web site
For the website “How do I Know if my E-Waste is Covered by the Electronic Waste Recycling Act?” | Web site
For more information go to the DTSC Electronic Hazardous Waste (E-Waste) | Web site
If you have any further questions about this or any other area of hazardous waste management you can contact the DTSC Regional Office closest to you at 1-800-728-6942 or you can reach the Sacramento Regional Office at (916) 255-3618. You can access the DTSC | Web site
DTSC Regulatory Assistance Officers (RAOs) provide informal guidance only regarding management of hazardous waste for the convenience of the public. Such oral or electronic mail advice is not binding upon DTSC, nor does it have the force of law. If you would like a formal opinion on a matter by DTSC, please contact the responsible program office directly. You should also refer to the statutes and regulations, DTSC Policies and Procedures, and other formal documents.
We also encourage you to complete the Cal/EPA Customer Satisfaction survey | Web site
Taxation of Electric Signs
A sales tax regulatory effort sought by CSA became effective October 1, 2000, changing the way electric signs are taxed in California. We have attached the Tax Information Bulletin regarding this change here for your convenience.
All of the information is available on the State Board of Equalization Web site, in the Sales & Use Tax section
To find the complete regulation, click on Regulations under the Quick Find section. Find 1521 - Construction Contractors. The Electric Sign section is subdivision (c)(12).
Subcontracting in Nevada
California and other out-of state sign companies doing business in Nevada faced serious fines and disciplinary action when the State of Nevada Contractors Board began issuing warning letters and determined that it was unlawful for Nevada licensees to subcontract with California and other out-of-state contractors for work to be performed in Nevada, unless those contractors also held Nevada licenses. CSA, ISA, the Nevada Sign Association (NSA), the Western States Sign Council (WSSC) and several individuals, including a Nevada state senator, all worked to resolve the issue.
Fortunately, on March 29, 2006 the Nevada State Contractors Board issued an advisory opinion which states, “The fabrication of a sign at a manufacturing facility does not meet the definition of ‘contractor’ under Nevada Revised Statutes…Any installation, on-site fabrication, erection or wiring of signs must be provided by a Nevada licensed contractor.” Please click on the link below for the complete document issued by the Nevada State Contractors Board.
CSA highly recommends that your sign contracts include language stating you will “arrange for installation with a local, state licensed contractor.”
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