ISA’s Kenny Peskin Discusses Sign-Code Trends

Kenny Peskin is the manager of state and local government affairs for the Intl. Sign Assn. (ISA), Alexandria, VA.

How do you learn about a city’s sign regulations? Most sign contractors only learn them while researching permit applications. Knowing an oversized sign won’t get approved affects how a sign company bids on a project and approaches a particular job.
But what if the project doesn’t require permits? What if contractors don’t need written city approval before starting a job? Would a sign be installed according to city rules if there’s no enforcement?

In almost every city, someone’s job is to enforce the sign rules. And almost every permanent sign requires formal permit approval. But, increasingly, we are finding sign-code troubles popping up in areas that require compliance, but don’t mandate formal permits. We have found two main areas where these “no permits needed” problems proliferate: within state-sign regulations and state-licensing disputes.

State sign regulations
If you ask most veteran, on-premise sign companies about Highway Beautification Act (HBA) regulations, they will say the states issue permits for billboards, but on-premise signs are excluded from these rules. But this answer is incomplete and often misleading. In fact, on-premise signs are mostly excluded from these HBA rules. This margin between “fully excluded” and “mostly excluded” recently has proven challenging for on-premise signs.

Dig into most states’ Administrative Code, and you will see that on-premise signs are only “mostly excluded” from the outdoor-advertising controls.
For example, Ohio’s regulations (§5501:2-2-03) don’t require permits for on-premise signs: “However, if an on-premises advertising device fails to conform to the following rules, it will be considered an off-premise advertising device subject to the statutes and rules governing such advertising devices.”

Among these rules are locating the sign on the premises, not using an easement on neighboring properties, not locating the sign on a remote corner of the property removed from business activity, the sign displaying on-premise content and not “general advertising”, and the sign complying with lighting standards. Also, EMCs located within 660 ft. of controlled highways need to comply with the ODOT “variable or multiple-message requirements.”

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None of these requirements forces on-premise sign owners to obtain a state permit. Most aren’t a problem for true on-premise signs, just off-premise signs that attempt to be permitted as “on-premise”. And these requirements often apply only in unincorporated areas outside municipal boundaries. But many sign companies don’t realize the need to comply with these “business activity-area” and EMC message restrictions.

In 2012, the Illinois DOT (IDOT) dragged sign owners into a fight that required proof that existing, undocumented, on-premise signs (and real-estate signs) visible from interstate highways were installed properly. Among the information requested from business owners was proof of ownership, GPS location of on-premise signs (requiring a licensed surveyor for signs larger than 150 sq. ft.), proof of the 1959 zoning designation, payment of a one-time $50 “registration” fee, and mandatory resubmission of updated paperwork every time the business was sold or the sign copy changed.
Fortunately, IDOT’s request was so outrageous and so burdensome to business owners that ISA, the Illinois Sign Assn., and allied retail and real-estate associations, successfully advocated for passage of 2013 legislation that rolled back IDOT’s authority to demand this information for “recordkeeping”. (Dennis Brin-quet of Ace Sign Co. led the fight. See ST, August 2013, page 96)

Crisis averted in Illinois. But a crucial lesson emerged from this adventure. Sign companies and retail businesses were outraged at the imposition of “new”regulations. But IDOT claimed these were not new regulations; rather, these were very old regulations that never had been applied or enforced. That distinction between “new” and “old, but always ignored” was crucial.

Many states require legislatures and executive agencies to analyze the costs and benefits of new legislation and regulations. If a rule costs too much to apply, support for the rule may disappear. But agencies aren’t required to analyze the costs of implementing an existing rule, even if the rule was never previously implemented.

A similar pattern has emerged in several other states, where state DOTs are revising regulations that impact on-premise signs. In the last 12 months, the Intl. Sign Assn. (ISA) has worked with possible DOT regulations that affect on-premise signs in Kentucky, Colorado and Arkansas. In each state, close reading of the existing (pre-2015) billboard regulations shows on-premise signs are exempt from billboard-permitting requirements, but subject to conformance with other rules for advertising devices.

In rules recently adopted in Colorado, on-premise EMCs located near controlled highways must comply with new brightness standards. (The brightness language mirrors ISA’s “Recommended Nighttime Brightness Levels for Electronic Message Centers”, available for free download at www.signs.org.) But two other significant changes occurred in these Colorado regulations.

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One, CDOT adjusted its 1983 rule that declared a sign “abandoned” after six months without use. The 2015 regulations have moved back that determination to one year, in line with recent Colorado court precedent on municipal-zoning powers.

Two, CDOT refined its definition of “activity area”, which specifies the placement of “on-premise” signs on the property. On-premise signs taller than 20 ft. or larger than 150 sq. ft. must be located within 50 ft. of the business activity. CDOT defines the activity area as “the regularly used buildings, parking lots, storage or processing areas, or other structures which are essential and customary to the conduct of the business. The distance shall not be measured from driveways, fences, or similar facilities.”

Excluded from this definition are outparcel parking lots and driveways, retention ponds and other development features that are often placed between a large development and the adjacent highway or arterial road. Many large development projects could have signs placed on the premises in a way that complies with the municipal regulations for “on-premise” signs, but violate the state requirement for the on-premise sign to be located near enough to the business “activity area”.

State licensing disputes
The rules governing electrical-sign contractors vary greatly from state to state. Many states have statewide licensing requirements, with an electrical or licensing board having the power to give examinations and issue licenses, and to suspend and revoke licenses for cause. Some states have no statewide licensing requirements, leaving this matter entirely to local jurisdictions. Some states have reciprocity arrangements for contractor/electrician licensing with other states that have the same or similar requirements.

Many states that issue contractor licenses have established specialty licenses intended to correspond directly with the scope of work performed by electric-sign contractors. But in some of those states, disputes are emerging over interpretations of the work performed by licensed sign contractors.
In Georgia, work on lighting fixtures may be illegal if performed by a licensed sign contractor who does not also hold a general, electrical-contractor license. In Michigan, installing border or façade illumination may be illegal if performed by a licensed sign contractor. Also in Michigan, new licenses were not being issued to individuals who reside outside the state – which heavily impacts sign contractors based in neigh-boring Toledo, OH, South Bend and Michigan City, IN and Green Bay, WI.

In Connecticut, sign contractors who are IBEW members can have union-electrician experience count towards meeting licensing requirements, even if the work was done out-of-state. And in Texas, longstanding arguments have been raised over the legality of signs fabricated by out-of-state manufacturers for installation by licensed Texas sign contractors.

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The key element that unifies all of these state-licensing issues is they all affect licensed, electric-sign contractors who try to comply with the law. Usually, they involve sign companies that operate today as they did yesterday. But now, they’re being cited for violating regulations or being issued cease-and-desist orders. The state regulations written on paper haven’t changed; just the interpretation of a key administrator or members of the state licensing board.

So, in addition to the myriad local sign codes, these two significant, state-level, regulatory initiatives have also presented increasing difficulties for sign companies.