BILL ANALYSIS
AB 109
Page 1
Date of Hearing: April 30, 2009
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Curren Price, Chairman
AB 109 (Feuer) - As Amended: April 23, 2009
SUBJECT : Outdoor advertising: digital advertising displays.
SUMMARY : Prohibits an advertising display that is visible from
a state, county, or city highway, as specified, from being
constructed as, or converted, enhanced, improved, modified,
modernized, or altered, unless it complies with a municipalities
(permitting authority) specified permitting process, as
described in state law. Prohibits, until January 1, 2012, any
highway changeable message sign (Caltrans) from displaying
messages other than official traffic operations or public safety
messages. Prohibits the painting, installation, or application
of a supergraphic, as defined, to an exterior building wall
until the State Fire Marshall (SFM) promulgates safety
regulations governing these signs. Specifically, this bill :
1)Provides that no advertising display, as defined, or any other
advertising display that is visible from a highway, as
defined, that is under state, county, or city jurisdiction,
other than an advertising display as described, shall be
constructed as, or converted, enhanced, improved, modified,
modernized, or altered into, a digital advertising display,
unless the permitting authority follows specified procedures.
2)Specifies that until January 1, 2012, no official highway
changeable message sign shall be constructed as, or enhanced,
upgraded, improved, modified, modernized, or altered into, a
digital advertising display for the purpose of displaying
messages other than official traffic operations or public
safety messages.
3)Provides that a permitting authority may issue a permit for a
digital advertising display only if it includes the following
actions and considerations in its permitting process:
a) Upon receipt of an application for a permit for a
digital advertising display, all residents, property
owners, neighborhood councils, and homeowner associations
within 1,000 feet of the proposed digital advertising
display, or within 1,500 feet if the top of the proposed
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display will be more than 54 feet above the ground, shall
be given 60 days' notice regarding the pending permit
application and the date, time, and location for a public
hearing concerning the application, as described.
1)Provides the applicant shall be required to submit, in
conjunction with the permit application, a site plan, a layout
plan, and an elevation plan, along with a fee equal to the
cost of the safety assessment to be conducted by the
permitting authority, as follows:
a) The site plan shall include all natural features,
buildings, and structures that may affect sight distance,
as defined.
b) The layout plan shall be on a scale of 1:2000 and shall
show, for a distance of not less than 1,000 feet from the
proposed site of the digital advertising display being
applied for, all the information as required for the site
plan, the positions from which elevations or photographs
are provided, horizontal curve positions, highway
gradients, speed limits, light standards, and any other
information required by the permitting authority that will
allow a detailed evaluation of any factor that could affect
highway safety.
c) The elevation plan may consist of photographs and shall
include details of the position from which an elevation
plan is provided or a photograph has been taken, the
distance from the proposed digital advertising display, and
the position of the display and its structure in
relationship to its surroundings and the highway.
1)Provides that upon receipt of the application and fee by the
permitting authority, a letter shall be sent to the applicant
confirming receipt of the application. The initial evaluation
of the application shall consist of locating the site on a
plan and verifying the information submitted with the
application, along wither details, as defined. An application
may be rejected based on the initial evaluation.
2)Provides following the initial evaluation, if the application
is not rejected, the permitting authority shall conduct a site
visit, along with other details, as described. Accident
statistics shall be obtained for each site and hazards posed
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by the proposed display shall be considered.
3)Provides the permitting authority shall consider driver safety
on highways, as defined, within view of the proposed digital
advertising display in determining whether or not to issue a
permit for any digital advertising display. Brightness of the
proposed display, frequency of message change, location in
complex driving environments, spacing between the proposed
display and other advertising displays, the likelihood and
extent of driver distraction due to the display, and potential
for confusion with official highway changeable message signs
are among the factors to be considered by the permitting
authority before a permit may be issued. Digital advertising
displays shall not present a physical safety hazard to
pedestrians or vehicles, or obscure the view of existing
highway signs and traffic signals, and the proposed display
shall be a safe distance away from highway signs and traffic
signals so that the flow of information to the driver is not
disrupted. Other factors to be considered include the size
and configuration of the digital advertising display, the
speed limit on the highway, and the position of the display,
which shall not distract motorists' attention at merge or
diverge areas, curves, interchanges, or intersections.
4)Provides after concluding its final evaluation, the permitting
authority shall hold the public hearing, as required, and
thereafter shall make its decision to issue or deny a permit
to the applicant. A letter of approval or disapproval shall
be sent to the applicant. The applicant may appeal an adverse
decision to a court. The standard of review shall be whether
the permitting authority's decision was arbitrary or
capricious.
5)Provides the permitting authority may not rely solely upon the
applicant's assessment of the safety impacts of the proposed
digital advertising display, but shall conduct its own
assessment, based on the most current independent safety
studies available. The permitting authority's application fee
shall cover its reasonable costs in that regard.
6)Provides a permit issued shall not constitute a vested right
as to the digital advertising display. The permit may be
revised or revoked if the digital advertising display is
subsequently found to be unsafe in any regard. Any alteration
to a permitted digital advertising display required by the
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permitting authority to meet the authority's safety
requirements shall not constitute a taking requiring
compensation.
7)Provides if a digital advertising display permitted and
erected, as defined, is subsequently found to be unsafe, and
the owner of the display cannot alter the display to meet the
permitting authority's safety standards, the owner of the
display shall remove the display at its own expense within 10
days and may not seek compensation from the permitting
authority exercising its police power to protect the public
health and safety.
8)Provides that no "supergraphic," defined as a very large
graphic advertising display that is painted or installed on,
or applied to, an exterior building wall, may be installed
until the SFM promulgates safety regulations governing these
signs. The regulations shall specify the type of materials
that may be used for these signs, which materials may not
conduct heat, smolder, drip, or create toxic smoke, and must
be capable of being torn away, as well as appropriate
placement for these signs and characteristics providing safe
ingress and egress for building occupants and firefighting
personnel.
9)Provides that the intent of this bill is to supersede any
ordinances, agreements, or stipulated judgments by and between
local and regional agencies and public or private persons or
entities that are in conflict with this bill, except that
nothing in this section is intended to preclude ordinances or
regulations by local jurisdictions that impose restrictions on
digital advertising displays or supergraphics greater than
those imposed in the bill.
10) Provides for civil penalties for a violation of these
provisions and provide other remedies for enforcement.
11) Defines "digital advertising display" as an advertising
display of still, scrolling, or moving images, including video
and animation, that may be changed remotely through electronic
means and utilizes a series of grid lights, including cathode
ray, light-emitting diode display (LED), plasma screen, liquid
crystal display (LCD), fiber optic, or other electronic media
or technology. "Digital advertising display" includes a
message center, as defined.
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12) Defines "official highway changeable message sign."
13) States the intent of the Legislature.
EXISTING LAW :
1)Provides generally, under the Outdoor Advertising Act (OAA),
for the regulation of any billboard or other adverting display
that is within view of public highways.
2)Declares that regulating advertising displays adjacent to any
interstate highway or primary highway is necessary to promote
the public safety, health, welfare, and convenience and
enjoyment to public travel, to protect the public investment
in such highways, to preserve the scenic beauty of lands
bordering on such highways, and to insure that information in
the specific interest of the traveling public is presented
safely and effectively, recognizing that a reasonable freedom
to advertise is necessary to attain such objectives, subject
to reasonable controls in the public interest.
3)Permits local governing bodies to enact ordinances, including
land use and zoning ordinances, imposing restrictions equal to
or greater than those imposed by state law, so long as no
lawfully erected display is forced to be removed without
payment of compensation to the owner, subject to certain
exceptions.
4)Provides that no lawfully erected advertising display shall be
compelled to be removed, nor shall its customary maintenance
or use be limited, without payment of just compensation,
except, as specified.
5)The Fifth Amendment of the United States Constitution provides
that private property shall not be taken for public use
without just compensation.
FISCAL EFFECT : Unknown
COMMENTS :
Background . Advertisers not only offer the public "new and
improved" products, they also seek new and improved methods of
reaching a consuming public. In the past decade, for example,
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the static wooden billboard has given way to a dazzling array of
brightly lit, rapidly changing electronic displays. These new
displays are no doubt effective, but detractors question their
effect on driver safety, including possible attention and
distraction effects?
The Federal Highway Administration (FWHA) is currently embarking
upon the second phase of a two-phase project on changeable
digital billboards - also known as "Commercial Electronic
Variable Message Signs" - on traffic safety and driver
distraction. The FWHA study was prompted by a review of
numerous published reports on this subject. Although not all of
the reports pointed in the same direction, the FWHA found in the
interests of public safety a definitive review was needed. The
second and final phase of the study is expected to be completed
in 2010. (U.S. Federal Highway Administration, The Effects of
Commercial Electronic Variable Message Signs (CEVMS) on Driver
Attention and Distraction: An Update, Publication No.
FHWA-HRT-09-018, February, 2009.) Another study, conducted by
the American Association of State Highway and Transportation
Officials (AASHA), is expected to complete its 10-year review of
the impact of digital displays on traffic safety later this
year.
The California Outdoor Advertising Act . Existing state and
federal laws regulate, subject to multiple conditions and
exemptions, the size, placement, and presentation of billboards
adjacent to highways. In California, the OAA for the
regulation, by the Department of Transportation, of any
advertising displays within view of a public highway. State law
must also generally conform to various federal laws, including
the Highway Beautification Act of 1965 (23 USC Section 131 et
seq.). While many of the state regulations deal with structural
requirements and placement limitations, the form of the display
can also be regulated in various ways. For example, a display
cannot imitate official highway signs or traffic lights, impair
the vision of travelers on adjacent highways, or, if visible
from a state regulated highway, display "any flashing,
intermittent, or moving lights." (Business & Professions Code
Section 5403 (b),(e), (g), and (h).)
While state and federal law generally regulates billboards and
similar advertising displays, local governments may also impose
restrictions equal to or greater than any restriction imposed by
state law, but local governments may not allow a display that is
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in violation of state law. Local governments are also entitled
to a portion of fees and fines under the state law, and they may
also require advertisers to obtain licenses and permits, in
addition to any licenses required by state law.
Caltrans Request to Place Advertisements on Traffic and Safety
Message Signs . This bill would prevent Caltrans from using
until January 1, 2012, official highway changeable signs for the
purpose of displaying digital advertising. Last fall, Caltrans
asked then U.S. Transportation Secretary Mary Peters to waive
federal laws prohibiting commercial advertisements on the
department's official message displays. According to Caltrans
director, Will Kempton, this would allow the agency to form
partnerships with private businesses that would permit the
agency to use the most up-to-date technology and to raise
much-needed revenue. (San Francisco Chronicle, October 24,
2008.) However, Director Kempton has stated, "if we determine
this is not safe, we're not going to proceed." (San Diego
Union-Tribune, October 25, 2008.)
U.S. Senator Diane Feinstein, in letters to both Director
Kempton and Secretary Peters, expressed her "strong opposition
to displaying new, potentially distracting advertising on
California's safety alert signs. These signs warn motorists of
delays, hazards, and Amber Alerts. I believe advertising on
these signs would present a safety hazard on our highways and
would reduce the effectiveness of the safety messages that
appear." In addition, Senator Feinstein contends in her letter
that advertising on Amber Alerts, in particular, may constitute
a violation of federal regulations. (U.S. Senator Diane
Feinstein to U.S. Transportation Secretary Mary Peters, October
21, 2008, available at http://feinstein.senate.gov ) The Amber
Alert is a federal system, coordinated with participating state
agencies, and subject to federal law and federal regulations.
(42 USC Section 5791 et seq.; 47 CFR Part 10.)
Removal of Displays Deemed Dangerous Will Likely Require
Compensation . Existing law treats the compelled removal of any
"lawfully erected" advertising display as a "taking," and
therefore provides, subject to limited exceptions, that no
display shall be forcefully removed without payment of just
compensation to the owner. (Business & Professions Code Section
5412.)
Supergraphic Signs . Generally, a supergraphic sign, consists of
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an image projected onto a wall or printed on vinyl, mesh or
material with or without written text. Normally their supported
and attached to a wall by adhesive and/or by using stranded
cable and eye bolts and/or other materials or methods.
Supergraphic signs are usually stretched across the exterior of
buildings. These signs are usually "off-site" signs, meaning
that the products they advertise are not available at the
location where the sign is posted. In general, supergraphic
signs are regulated through the municipal code.
Recently, safety concerns relating to supergraphics have been
raised by local fire inspectors and in a judicial ruling. In
March 2009, U.S. District Judge Audrey B. Collins in a tentative
ruling (World Wide Rush LLC et al. v. City of Los Angeles, CV
07-00238) stated that "?the court is left with only one logical
conclusion: all supergraphic signs that cover windows pose a
fire and life safety hazard."
Purpose of the bill . The author states this bill is in response
to numerous concerns about the potential hazards of
brightly-lit, rapidly changing digital advertising displays
along the state's highways, roads, and streets. Municipal,
state, and federal government agencies have expressed the fear
that such displays distract motorists, especially when lining
California's notoriously crowded, fast-moving, and complex
network of highways, freeways, and interchanges. The author
points out that the key issues of concern are potential
distraction to motorists due to brightness, rapid changes in the
signs, and proximity to complex driving environments and areas
of high traffic congestion; diversion of attention from official
highway signs; and spacing, among other factors. In addition,
in 2010, FWHA is expected to release a study, consisting of
field work and conclusions concerning safety impacts of digital
advertising displays. This study will play a significant role
in the future of digital advertising displays and their affects
on public safety.
The author states that the intent of this bill is to protect
public safety by requiring local jurisdictions to follow the
procedures in this bill to ascertain the safety impacts of
proposed new digital advertising displays, or the conversion,
enhancement, improvement, modification, modernization, or
alteration, other than routine maintenance, of existing
advertising displays into digital advertising displays, that are
visible from a state, county, or city highway. In essence, if a
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digital advertising display is permitted and erected but is
subsequently found to be unsafe, and the owner of the display
cannot alter the display to meet the permitting authority's
safety standards, the display shall be removed and the owner may
not seek compensation from the permitting authority exercising
its police power to protect the public health and safety.
In addition, this bill provides that until January 1, 2012, no
official highway changeable message sign shall be constructed
as, or enhanced, upgraded, improved, modified, modernized, or
altered into, a digital advertising display for displaying
messages other than official traffic operations or public safety
messages. In effect, this bill will prevent the California
Department of Transportation (Caltrans) from converting official
highway message signs to digital advertising displays to carry
commercial messages. According to the author, this
time-restricted provision will protect public safety while
allowing the federal studies to be completed and evaluated.
Further, the author states that numerous municipalities and
states have raised safety concerns regarding the very large
graphic advertising displays known as "supergraphics" that are
painted or installed on, or applied to, exterior building walls.
The author points out that the key issue of concern with
supergraphics is that they often cover buildings, windows, and
fire escapes, endangering the lives of building occupants and
firefighting personnel as well as property. The author states
that this bill will protect the public safety and property by
prohibiting the painting, installation, or application of
supergraphics to exterior building walls until the SFM
promulgates regulations concerning approved materials,
appropriate placement, and characteristics providing safe
ingress and egress for building occupants and firefighting
personnel.
In Support . Supporters uniformly contend that this is a
reasonable, prudent, and time-restricted measure designed to
protect public safety until studies can be evaluated. The City
of Los Angeles, for example, supports this measure because it
will "give policy makers time to adequately review the results
of pending safety studies on the potential driving hazards
associated with electronic billboards."
Scenic America supports this bill because it represents "a
chance for the state to take a deep breath and collect
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scientific information about the safety implications of these
signs, which, after all, are deliberately designed to distract
drivers. The prudent step," according to Scenic America, "is to
take the time necessary to study [digital displays] before they
are permitted to proliferate." Scenic America also applauds
this bill for effectively halting, at least temporarily,
Caltrans proposal to convert official highway message signs into
digital billboards carrying commercial messages. The Caltrans
proposal, according to Scenic America, would place distracting
advertising displays directly over and immediately
adjacent to the highway right-of-way, closer than most
billboards which are visible from but outside the right-of-way.
Finally, Scenic America rebuts the claims of opponents
that this bill will have adverse economic consequences by
reducing effective advertising. Tens of thousands of billboards
exist along highways throughout the state, and there is no
evidence that billboards that change every few seconds are more
effective than billboards with a static message. Moreover,
Scenic America contends, any detrimental economic consequences
will be more than offset by the money saved by not having to
compensate local governments for removal.
In Opposition . The California State Outdoor Advertising
Association (CSOAA) claims that this bill is "both unwarranted
and counterproductive at this time." CSOAA argues that this
bill will have adverse economic consequences, limit the
effectiveness of public safety messages, and eliminate an
important local revenue stream for local governments. CSOAA
contends that local communities already adequately regulate
digital billboards. This bill will "hurt California businesses
large and small by limiting their options for most effectively
promoting their products [and] eliminate needed jobs for workers
who construct, convert, and maintain the billboards." CSOAA
claims that commercial digital billboards offer important
revenue streams that can be used for special projects or to
supplement stretched general funds. Finally, CSOAA contends
that there is no documented evidence to support claims that
digital billboards present a public safety concern.
Clear Channel Outdoor and Regency Outdoor Advertising, two of
the leading providers of outdoor digital advertising displays,
claim that this bill is unnecessary because outdoor advertising
displays along the state's highways are already adequately
regulated by the OAA. Clear Channel claims that, far from
posing a threat to public safety, "digital displays can be used
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as a public safety tool to allow up to the minute notification
to the public on issues ranging from traffic issues, criminal
activity and natural disasters, to name a few." Regency claims,
additionally, that this bills "would constitute an
unconstitutional violation of . . . of the separations of
powers doctrine," presumably because the Legislature would
purport to supersede local agreements.
The California New Car Dealers Association (CNCDA) and the
Motion Picture Association of American (MPAA) oppose this bill
because of its alleged impact on their respective industries.
CNCDA notes that its members are frequent users of "reader
boards" to advertise its product to consumers traveling on
nearby roads and freeways. The MPAA states that digital
billboards present "the most efficient and attractive"
opportunity to keep advertisements about new movies and
television shows up-to-date.
Related legislation . SB 690 (Leno) of 2009, revises the
definition of "lawfully erected" by removing the inclusion of
properties later brought into compliance and exempt signs that
were illegally modified with respect to use, height,
orientation, or size; and provide that compensation provisions
shall not apply to an advertising display that was altered in
violation of its building permit. (Senate Judiciary Committee)
Prior legislation . SB 563 (Ridley-Thomas, 2007), deletes the
"rebuttable presumption" in current law that deems those
advertising displays that were unlawfully erected as lawful if
the sign owner had not received notice that the display was
unlawful within five years of the display being erected. This
bill also deletes the requirement that entities requiring the
removal of unlawfully erected signs pay sign owners just
compensation to do so. Moreover, this bill specifies conditions
under which local entities are exempt from paying just
compensation to a sign owner for the removal of a sign that
becomes nonconforming due to a change in law, ordinance, or
regulation governing advertising displays. (Died in the Senate
Rules Committee)
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Insurance Companies
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City of Los Angeles
Scenic America
Opposition
California Chamber of Commerce
California New Car Dealers Association
California Sign Association
California State Outdoor Advertising Association
Clear Channel Outdoor
Los Angeles Area Chamber of Commerce
Motion Picture Association of America
Regency Outdoor Advertising
Letters from the general public
Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531