Aesthetics and On-Premise Signs
Current environment: One of the main justifications that localities cite for their sign codes is their community’s appearance, or aesthetics. Many sign code officials have been taught to view on-premise signs as unsightly. Some courts have been permissive in allowing local officials to base their restrictive local building ordinances on reasons of aesthetics.
ISA Position: ISA believes that local officials may have some legal authority to regulate the aesthetic appearance of their communities, as established by U.S. Supreme Court precedent. However, ISA also believes that while this authority to regulate extends to the physical appearance of homes, trees, etc., it does not extend without limit to subjects which have constitutional rights, such as the commercial speech embodied in on-premise signs.
ISA believes that the combination of words, symbols, colors, fonts, shapes, textures, etc, on commercial on-premise signs present a unique and recognizable message that is valuable to end users and potential customers. ISA also believes that the total presentation of a sign is its message, and aesthetic restrictions that limit this presentation could result in the loss of creative expression, loss of conspicuity and readability, and even result in de facto censorship of the commercial message.
ISA believes that a good business will want to have an aesthetically pleasing sign in order to attract customers. ISA also believes that communities and businesses should work together to establish design review standards that promote well-designed and effective signs without censoring speech.
ISA believes that the amortization of on-premise signs violates the letter and spirit of the United States Constitution and various state constitutions, which provide that no person shall be “deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.” ISA believes that amortization of on-premise signs is based on flawed reasoning; specifically, that that the sole economic value of signs is the cost of purchasing and installing them, and that over a specific period of years the business owner has depreciated out the cost of buying and erecting their sign and has therefore already recovered the entire value of the sign.
Federal Lanham Trademark Act
ISA believes that trademark usage plays a vital role in our consumer economy, as it allows consumers - at a glance - to form a familiar mental association with known information.
The visibility, identity and brand recognition afforded by trademarked logos on signs plays a powerful role in consumer choice and the success of a business. It is difficult for a business to maintain its brand identity if a community required all business signage to look the same. This sort of regulation diminishes the importance that signs bring to the value of small businesses, restricts the message embodied in the overall presentation of the sign, unduly burdens consumer identification and choice, undermines the investment-backed expectations of mark holders, and subsequently limits the ability of businesses to operate to their full economic potential. It also could raise significant implications under First Amendment content neutrality requirements. With annual retail sales by franchised businesses estimated by the International Franchise Association to be $1 trillion, the financial implications of such regulations can be dire.
Highway Beautification Act and On-Premise Signs
The Highway Beautification Act (23 USC 131) of 1965 calls for control of outdoor advertising or billboards within 660 feet of the nation's Interstate Highway System and the existing federal-aid primary highway system.
Since its passage, the Highway Beautification Act has been consistently interpreted as exempting on-premise signs under its jurisdiction. However, in recent years a few state and federal officials have mistakenly sought to regulate on-premise signs using the Act as justification.
The Highway Beautification Act cannot be used as justification for government officials to regulate on-premise signs. The HBA does not apply to all signs within 660 feet of a primary aid highway or interstate system. 23 USC 131(c)(2) and 23 USC 131(c)(3) of the Act provide exceptions for on-premise signs, including for on-premise electronic changeable message signs. It was never the legislative intent of the drafters of the Highway Beautification Act or its subsequent amendments to place on-premise signs under any federal control.
ISA believes that if cities develop and properly enforce reasonable sign codes, then “sign clutter” or other problems caused by illegal signs would decrease significantly.
ISA supports proper licensing of sign contractors by municipal and state jurisdictions. Additionally, ISA’s membership comprises professional sign companies that understand and comply with requirements to obtain local permits prior to the erection of signs. Furthermore, regional sign associations affiliated with ISA actively monitor and report unlicensed companies that sometimes operate in their home territories. Because the vast majority of illegal signs are not erected by licensed sign companies, we believe that enacting more stringent sign codes represents an inappropriate response to this problem.
Inspections and Certifications
ISA believes that municipalities should not impose illumination and energy efficiency regulations unless it can be proven that the benefits outweigh the costs of doing so. When a municipality imposes certification requirements, they must be technically feasible and compliance needs to be timely in order to ensure that local business customers can receive their signs with unnecessary delays or additional fees.
Every municipality must assess its technical knowledge, staffing capacity, and willingness to enforce any illumination or energy efficiency regulations. Sign contractors should not be required to provide certifications that fall outside the purview of their license.
Mandatory Lighting Restrictions
ISA disagrees that nighttime illumination is necessarily harmful and should always be restricted without regard for the nature of the illumination. Lighting restrictions may seriously impact a community’s economic health when applied to signage. Forcing cities and businesses to change all lighting – including the illumination required for some types of signage-- may increase costs for taxpayers and customers. Redesign, retro-fitting of sign structures or elimination of lighting fixtures, and capital expense of new products will negatively impact not only the business that must bear this burden, but it can negatively impact on the sign’s ability to communicate clearly. Signs have unique illumination properties that can not be regulated as “light sources.”
The reduction of illumination in signs often results in a lack of conspicuity and readability, which significantly limits a sign’s message and visibility to potential customers, resulting in effective censorship. Illuminated signs fall under the protections of the First Amendment and consequently can not be restricted like general outdoor nighttime lighting.
Illuminated signs also help enhance public safety at night, as people feel more secure in well-lit public areas. Illuminated signs also help increase public safety by providing effective direction to nighttime motorists in finding their destinations.
ISA supports smarter lighting strategies such as dimming capabilities in on-premise electronic message centers and technology that allows illuminated signs to use light more efficiently.
Mercury, in vaporized form, is a critical component of many types of energy efficient lighting, such as fluorescent lamps, compact fluorescent lamps, HID lamps and some colors of hand-fabricated neon tubes. The use of mercury is essential for proper illumination, conspicuity and visibility of neon signs. The International Sign Association (ISA) is firmly committed to environmental quality and to corresponding reductions in the usage and disposal of mercury. At the same time, however, ISA opposes regulations that arbitrarily prohibit or limit the use of mercury in neon signs.
Supporting our commitment to the environment, ISA promotes measures and provides resources that enable our members to properly recycle all types of mercury-added lamps, including neon. These initiatives comprise efforts to increase the recovery of spent mercury lamps and to establish a network of recyclers throughout North America equipped to receive and process lamp wastes in accordance with applicable statutory requirements.
Additionally, ISA is investigating mercury consumption during the life cycles of neon lamps to ensure that mercury usage is limited to the minimum levels appropriate for proper sign operation in a broad range of typical applications. In this way, ISA implements a two-pronged approach to mercury reduction: first, by advocating the use of accurate control systems for mercury dosage during fabrication of neon tubing and second, by promoting recycling of all mercury lamp wastes at the end of product lifetimes.
Because a substantial percentage of obsolete, electric signs are recovered intact by sign companies from retail and commercial sites, ISA has the capability to achieve significant improvements in the industry’s overall recycling of mercury lamp wastes. For this reason, ISA’s strong commitment to recycling promises to yield substantial benefits to the environment and without compromising the inherent value of signs as essential forms of communication.
On-Premise EMCs Having Off-Premise Messages
An on-premise sign is a communication device whose message and design relate to a business, an event, goods, profession or service being conducted, sold, or offered at the same location as where the sign is erected. An off-premise sign is any sign that is not appurtenant to the use of the property, a product sold, or the sale or lease of the property on which it is displayed and that does not identify the place of business as purveyor of the merchandise, services, etc. advertised upon the sign.
When an on-premise EMC is programmed to include among its several messages one that advertises a business, an event, goods, profession or service being conducted, sold, or offered at a different location from where the sign is erected, it may be viewed by some government officials as being an off-premise sign, and need to be permitted and regulated as such. This can have adverse impacts on both the individual sign users as well as other future sign users who will need approval from zoning or permitting authorities.
ISA believes that the messages that should be displayed on signs permitted under on-premise sign regulations should be messages relating to a business, an event, goods, profession or service being conducted, sold, or offered at the same location as where the sign is erected. ISA also believes that on-premise signs should be permitted to display noncommercial messages without risk of losing their on-premise status or exemption from outdoor advertising restrictions.
On-Premise Sign Size Standards
Studies and research demonstrate that signs must be of certain minimum sizes in order to be sufficiently visible to motorists. Otherwise, inadequately-sized signs can create unsafe driving conditions. As noted in a 1998 study by Richard N. Schwab, a former Federal Highway Administration program manager for research on highway visibility and night driving safety: “Traffic safety is not jeopardized by the sign itself or some sort of stimulus overload; instead the culprit is inadequate sign size or lighting, or inappropriate placement, or a combination of these factors.”
Size standards for signs must be based on various objective factors such as the number of highway lanes, posted speed limits, driver reaction time and the sign’s letter size, color contrast, mounting height, etc.
In order to attract potential customers, the best sign for a small business is one that is visible and legible for people who are driving past the business. Sign codes, therefore, should be based on sign sizes adequate for effective communications to the public.
ISA believes that municipal codes which unduly restrict sign sizes defeat the very purpose for which signs exist. Restrictions of this type also curtail the creativity and artistic expression which represent hallmarks of the sign industry, and which can therefore result in bland, uniform and unattractive signs.
ISA believes that while “time, place and manner” restrictions apply to sign regulations, cities must consider the latest in scientific research and data regarding the relationship between sign sizes and motorist visibility. Observing these guidelines is just as important with reference to commercial signs as it is for traffic safety signs, the latter of which are governed by the Manual on Uniform Traffic Control Devices, which uses minimum size standards.
ISA believes, and the federal court system agrees, that the messages embodied in on-premise signs are speech and are therefore due certain constitutional protections. In the area of prior restraint, this includes the First, Fifth and Fourteenth Amendments. Specifically, the Fourteenth Amendment guarantees “due process and equal treatment” in the regulatory process. In the signage regulatory process, the Fourteenth Amendment commonly enters the picture at the permitting phase, including appeal of a permit denial. The courts have ruled that there are two types of prior restraint – “procedural” and “substantive.”
ISA believes that sign permit standards must be clear, concise, and capable of objective interpretation and administration. Additionally, the decision to grant or deny a sign permit (and in the case of the latter, a hearing on appeal of a denied permit) must occur in a timely manner. If the government does not provide any of these minimum procedural requirements, they violate the due process clause.
ISA believes that government officials should not have “unbridled discretion” when deciding whether or not to grant a sign permit, but should instead follow explicit, understandable and objective standards within the sign code. If not, such a scheme can result in censorship.
ISA believes that any sign permitting process which does not guarantee resolution of application issues within a short period of time and that does not strictly limit the government’s discretion should be challenged.
Shutoff or Lighting Curfew Requirements
In recent years, proposals to restrict night-time illumination have emerged as a growing issue of concern.
Some municipalities and national model ordinances are including language that attempts to restrict the hours when a sign may be illuminated. These restrictions can limit a sign’s function only to the hours of operation or may require shutoff at a specific time of day. The imposition of these shutoff or lighting curfew requirements for signs adversely affects delivery of the sign’s message and, consequently, its inherent value to the user.
Unlike the lighting of building facades and landscape features (which are designed for an aesthetic function), signage is designed primarily for a commercial function and serves a significant audience that may not be accessing the facility. Requiring facilities to shut off signage at the conclusion of operations will deprive businesses and other facilities of necessary advertising to the pedestrian and motoring public.
ISA believes that illuminated signage should not be subject to imposed shutoff or lighting curfew requirements. Illuminated signs serve a different purpose than general lighting; they communicate and broadcast messages. This purpose extends beyond the operating hours of a business location or organizational facility. In restricting the use of illuminated signage, government regulations interfere with the distribution of a message and the constitutionally protected expression of free speech.
The International Sign Association (ISA) supports measures that preserve a high level of flexibility for designers and users of signage. Effective use of graphics, font styles and color combinations is fundamental to the visual appeal and inherent value of signs. Likewise, effective contrast represents an essential element of signage design. Because the methodology for defining and measuring contrast remains elusive, however, ISA opposes regulatory initiatives that would arbitrarily curtail the user’s freedom to effectively and creatively communicate messages.
Consequently, ISA opposes efforts to mandate a 70-percent contrast level for Americans with Disabilities Act (ADA)-compliant signage. During the past 10 years, proposals to create this requirement have continually been introduced to the ANSI A117.1 Committee that develops ADA regulations. ISA has successfully defeated these proposals by pointing out errors in proponents’ understanding of color science and the corresponding metrics for contrast evaluation. So far, ISA has been successful in persuading the ANSI committee that establishing a 70-percent contrast requirement for signage would create significant problems, particularly in terms of enforcement by local authorities having jurisdiction.
The current advisory language on sign contrast has served as a sufficient guideline since 1991, when the original ADA Accessibility Guidelines were published in the Federal Register. Furthermore, the validity of the original study that formed the basis for the 70-percent guideline has been disputed by expert sources. Until such time as independent, peer-reviewed research demonstrates the value of establishing a fixed threshold for signage contrast, therefore, ISA supports preserving the current ADA language, under which 70 percent remains an advisory guideline and not a requirement.
Sign Illumination in Model Codes
ISA believes that model code language needs to recognize that the unique purpose of commercial signage is for advertising, which differentiates it among the many structures and energy uses that may be present on a property. When language addressing signage is included in model codes, the standards-developing organizations should consider that signs function at times other than during hours of operation or when tenant spaces are occupied.
ISA further believes that when states or municipalities adopt a model code containing energy efficiency regulations that limits the hours of illumination, municipalities should adopt local ordinances that protect the right of businesses and institutions to operate their electric signs. These ordinances should allow for sign to operate during all reasonable times of pedestrian and vehicular travel, even if more than one hour after facility operations end or before facility operations begin.
Signs and Commercial Speech
Current Environment – Cities often regulate on-premise signs as though they are merely an auxiliary use of the land on which they are located. As such, many sign codes do not take into consideration the commercial free speech rights embodied in signs. This can adversely affect the ability of small businesses to succeed, and can also result in a city’s sign code being found unconstitutional.
ISA Position: ISA believes that the right to free commercial speech, as established by the U.S. Supreme Court under the First Amendment, applies to on-premise signs.* Therefore, small businesses have the constitutional right to have their commercial messages seen and understood without undue government regulation.
Such constitutional protection requires that on-premise sign regulation place reasonable time, place and manner limitations on signs without reference to the content or message of the speech, or the identity of the speaker, unless a substantial state interest is at stake and cannot otherwise be furthered without a burden on this protected speech.
ISA believes that when challenging the constitutionality of an on-premise sign code, the government carries the burden of proving that the regulation at issue advances a substantial state interest and that this interest cannot be advanced or conferred by a less restrictive burden on the speech embodied in on-premise signs.
Possible Consequences: If cities continue to regulate signs without fully and properly considering their constitutional free speech implications, then small businesses will have a more difficult time reaching potential customers. In addition, more cities will have their sign codes found to be unconstitutional and be held liable for damages.
Desired Outcome: Government officials and courts recognize that the messages embodied on on-premise signs are protected by the Freedom of Speech clause of the First Amendment, and that cities cannot differentiate between non-commercial and commercial messages.
Signs and Economic Development
Current environment: U.S. small businesses account for over 60 million jobs and create more than half of the non-farm private gross domestic product (GDP). However, it is still difficult for most local retailers to survive in our competitive marketplace. Most small businesses have small profit margins and cannot afford to spend excessive funds on advertising, so they must frequently rely solely upon on-premise signs to advertise their goods and location to potential customers.
ISA Position: ISA believes that businesses have a better chance to succeed if they are allowed to have well-placed and well-designed signage. According to the U.S. Small Business Administration, on-premise signs “are the most effective, yet least expensive form of advertising for the small business.” A cost-per-exposure analysis comparing on-premise signs and television, radio and newspaper ads shows that on-premise signs are a far less expensive way for a small business to advertise its goods and services.
Possible consequences: Cities continue to enact and enforce restrictive sign codes, hurting the ability of small businesses to function at their full potential. Local communities are also hurt, in the form of lower tax revenues and decreased employment. This could result in economic downturns across the board, and damage our traditionally strong, vital, market-based society.
Desired Outcome: Sign codes are drafted to give businesses the opportunity to have maximum success at their locations by permitting signs to be placed where they will be seen by intended audiences. Communities and local economies benefit as well.
ISA Believes that the responsible use of temporary signs serve a valuable communications function for advertising specials, and other impulse and community-oriented messages. Temporary signs also allow more effective communication in areas where codes regulating permanent signs are especially restrictive.
Temporary signs are any signs not intended for permanent installation. Generally, these signs are intended to be used for a limited period of time for purposes such as announcing special events or sales, announcing the sale or rental of property, supporting political candidates or positions, emergency messages or presenting other miscellaneous or incidental information or instructions.
In order to establish a successful temporary signage policy, communities should ensure that their code language is clear and concise with respect to permitting, duration, enforcement and legal standards.
ISA Believes that adequate window signage is an important form of identification and advertising for small businesses, and that suitable window signage helps create a vibrant and prosperous business community.
Window signs are signs that are painted on, attached to, or suspended directly behind or in front of a window or glass portion of a door.
Window signs are often regulated by the content of the message (i.e., by only allowing "open" or "closed" signs), by limiting the percentage of space that such a sign can take up in the window, and by including the square footage and area of widow signs as part of the total allowable sign area given to a business.
The overregulation of window signs can be stifling to business and create a sterile commercial environment. Jurisdictions should allow a reasonable percentage of window signs for a business (i.e., up to 50%), content restrictions should not be placed on the message of a window sign, window signs should not require a permit and should not be counted towards the total allowable sign area for a business.