How Does the Americans with Disabilities Act Regulate Signage?

Undoubtedly, no aspect of any kind of signage regulations is more exacting, or likely to be altered, than those governed by the Americans with Disabilities Act (ADA), which was originally enacted in 1990. Primarily, this concerned access for people with disabilities, such as wheelchair ramps, railings, handicapped parking, etc. But it also included stipulations for signage, specifically braille signage for people with limited or no vision. These regulations are outlined in ADA Accessibility Guidelines (ADAAG). Most of these regulations have been contentious, and they are changed often. The most recent iteration went into effect March 15, 2012. The following article outlines some of these specifics. http://www.nxtbook.com/nxtbooks/STMG/sott_201201/index.php#/68

Overall, on September 15, 2010, the U.S. Department of Justice published “2010 ADA Standards for Accessible Design,” a 279-page document. http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf. The most sign-specific section (703) begins on page 190. Here is a link to it. Note that the link is for all the 700 sections (700 – 708), but the sign-specific information is all in Section 703.

https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards/ada-standards/chapter-7-communication-elements-and-features

FASI Board Member Prof. Alan Weinstein Addresses APA Conference about Reed v. Gilbert

Law professor Alan Weinstein, a board member of the newly formed Foundation for the Advancement of the Sign Industry, was one of three people associated with sign-industry groups who spoke at a session on sign regulation at the American Planning Association annual conference, April 4, in Phoenix, Arizona. Speakers at  the session, entitled “Regulating Signs after Reed v. Town of Gilbert,” also included Wendy Moeller, AICP, a board member of the The Signage Foundation, and James Carpentier, the Director of State & Local Government Affairs for the International Sign Association.

Weinstein holds a joint faculty appointment at Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs, and also serves as director of the colleges’ Law & Public Policy Program. A recognized expert on planning law, he has written more than 80 articles/books on this subject. http://www.nxtbook.com/nxtbooks/STMG/sott_201508/index.php#/66 includes his observations on Reed v. Gilbert’s ramifications, and he also wrote an article about this for The Signage Foundation (SFI), http://www.thesignagefoundation.org/Portals/0/SFI%20Analysis_State%20of%20Sign%20Codes%20After%20Reed.pdf

Weinstein twice presented at the National Signage Research & Education Conference (NSREC) at the University of Cincinnati. NSREC is presented annually by SFI. Weinstein also serves on the Board of Directors of the Academic Advisory Council for Signage Research & Education (AACSRE), a group of 17 universities with a common interest in sign-related research.  

How Big Do the Letters on Signs, Parallel to the Road, Need to Be?

As noted elsewhere on this website, “visual acuity” and “conspicuity” and “cone of vision” are very important for signs, because motorists must be able to detect signs, read them and then react to them in a few seconds. So how much does the visibility change when a sign directly faces the driver (perpendicular to the road) versus one that may be flat against a building fascia (parallel to the road)?

The Larson Transportation Institute at Penn State University studied this phenomenon in 2006 through a grant from the United States Sign Council. Much of the work involved a literature review of prior, related research.

Several factors impact the necessary minimum size for letters, so that they can be detected and read quickly enough for the driver to react:

  • Number of lanes of traffic
  • Distance from the road to the sign
  • The motorist’s speed
  • The angle at which the sign can be read

USSC has published a chart that ranges from a sign that’s 10 feet from the road when the motorist is in the curb lane, versus a five-lane road in which the sign is 400 feet from the road. In the first instance, the sign’s letters need to be at least 4 inches tall. In the latter instance, the letters need to be a minimum of 90 feet tall.

This study, entitled “On-Premise Signs: Parallel Sign Legibility and Letter Heights, may be accessed at www.ussc.org.

How Can the Value of an On-Premise Sign Be Calculated?

Richard Bass is a certified appraiser in Sarasota, Florida. During his more than 30 years in business, he has testified in court as to how a sign’s value can be appraised. In a presentation for The Signage Foundation, bass outline three case histories where the absence of a sign could be measured economically. Planners, Signs and A Community’s Economic Well Being (Powerpoint) – Rick Bass

In a 1995 case in Decatur, Georgia, a Days Inn was allowed to use an electronic message center for four years that was actually situated on a third party’s property. Property ownership changes occurred, so a payment needed to be determined. Three approaches were used: comparable sales, income and cost.

For the “comparison” method, the sign was compared to a billboard, Based on outdoor-advertising prices, for the 49 months, the price was calculated to be approximately $1.6 million.

The “income” approach examines Days Inn’s income for the same time period: $8.4 million. The percentage of this attributable to the sign was calculated at 25%, which made it $2.1 million. Because half of the guests already had reservations (which meant the sign didn’t draw them in), the figure was reduced to $1.050 million. Adding a 10% for interest earned, the final figure became $1.2 million.

The “cost” approach considers how else the property could be used. based on 238 units, the value of each motel room was set at $31,765. If they were all converted to apartments, their value would be $25,000 each. The value difference, $6765, multiplied by 238, becomes approximately $1.6 million.  The full story, with detailed calculations, appeared in the April 1999 issue of Signs of the Times magazine.

What has the Supreme Court Said about On-premise Signage?

Supreme Court cases that involve on-premise signage

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The 14th Amendment

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As far back as 1923, in Meyer v. Nebraska, SCOTUS ruled that the 14th Amendment protects the rights of citizens to, among myriad things, “acquire useful knowledge” and, based on Virginia Pharmacy, can’t restrict speech based on who the speaker is (“equal protection”).

Unquestionably, the Reed v. Gilbert Supreme Court (SCOTUS) case from July 2015 was the most important court case for the sign industry of the 21st Century (see related story). But several other SCOTUS cases have established sign-code standards still in effect today.

Time, Place and Manner

In 1976, SCOTUS ruled that pharmacies were allowed to announce their prices for drugs in Virginia State Board of Pharmacy v. Virginia Citizen Consumer Council, Inc. Essentially, this case substantiated First Amendment freedom-of-speech protection for advertising messages. Most importantly, the case established the tent of “time, place and manner” for restricting the words on signs.

Virginia established that sign can’t arbitrarily restrict the time a sign can be displayed (“when”), place (“where”) or manner (“how”) a sign can be displayed. Any limitations on these three characteristics are permitted only if the restrictions are shown to be:

  • Justified without reference to the speech’s content
  • Serve a significant governmental interest, and
  • Allow ample alternatives for communicating the information.

Directly Advances, Narrowly Tailored

Four years later (1980), Central Hudson Gas & Electric Corp. v. Public Service Commission further strengthened Virginia’s tenets by adding that any restrictions, to withstand a constitutional challenge, also had to

  • Directly advance the governmental interest, and
  • Be narrowly tailored to achieve that interest.

Soon after Central Hudson, the SCOTUS case of Metromedia Inc. v. City of San Diego involved the allowance of on-premise signage, but the banning of off-premise outdoor advertising (billboards). Although five separate opinion emerged, a 6-3 vote declared the ordinance unconstitutional.

Advertising Bans
In 1996, in 44 Liquormart v. Rhode Island, the state tried to ban the advertising of liquor prices anywhere but at the actual stores. Essentially, SCOTUS upheld the right for merchants to advertise truthful, non-misleading commercial information. First Amendment protections superecede “vice” oriented restrictions.

The Fallacy of “Rational Basis Test” 
The above cases collectively negated the broad police powers that became known as the Rational Basis Test that followed Village of Euclid v. Amber Realty (1926). It basically allowed cities to enact legislation that promoted health, moral, safety and general welfare objectives. This is the basic rationale for virtually all sign codes. Cities only needed to show the regulation wasn’t arbitrary and could be rationally linked to a governmental objective.

Other First Amendment Cases
In 1977, the township of Willingboro, NJ, banned “for sale” signs on residential lawns in an attempt to prevent “white flight” from racially integrated neighborhoods. This also falls under the tenets of a “content neutrality” violation because it was based solely on the signs’ messages.  In Linmark Associates v. Township of Willingboro, SCOTUS ruled this to be unconstitutional because it unduly restricted the free flow of information. The defendants tried to use the “time, place and manner” defense, but it was overruled. The court ruled that the sign provides an immediate way to react.

Are On-premise Signs Important to Shoppers?

Better Homes & Gardens magazine conducts annual surveys with its subscribers as part of The American Grocery Shopper Study™. Over a three-year period (2011-2013), questions were added about the importance of on-premise signage. Here are the three-year summaries (presented chronologically) of “yes” responses to specific statements:

“I have driven by and failed to find a business because the signage was too small or unclear.” 49.7%, 60.8%, 64.0%

“I have been drawn into unfamiliar stores based on the quality of their signs.” 29.0%, 35.8%, 34.8%

“I have made quality assumptions based on a store having clear and attractive signage.” 34.5%, 41.5%, 42.2%

For another set of statements, respondents could answer “agree,” “neutral” or “disagree” (presented chronologically).





2012:

“One of the first things I notice about a new or unfamiliar business is the signage outside its building.”

2013 76.0%, 19.1%, 4.9%

“In addition to identifying a business, signs can convey the personality or character of the business.”

2012: 85.7%, 11.9%, 2.4%

2013: 83.9%, 14.5%, 1.6%

“The letters on signs should be large enough for passing motorists to read at a glance.”

2012: 90.9%, 8.4%, 0.7%

2013: 91.4%, 7.8%, 0.8%

“I get frustrated and annoyed when signs are too small to read.”

2012: 81.5%, 13.7%, 4.8%

2013: 83.0%, 13.9%, 3.1%

“Smaller signs are generally more attractive than larger signs.”

2012: 13.5%, 52.1%, 34.3%

2013: 14.1%, 51.3%, 34.7%

“Uniformity of signage within a business district looks attractive, but makes businesses harder to identify at a glance.”

2012: 62.7%, 30.15, 7.2%

2013: 69.5%, 26.9%, 3.6%

The survey also asked respondents: “What make signs difficult to read?” In order of importance, their answers were:

The letters are too small (83.3%)

The placement of the sign makes it hard to see (71.4%)

The sign is not sufficiently lit at night (63.6%)

The color of the letters does not stand out from the background (60.3%)

Digital signs change the message too fast (52.6%)

Do Signs Help First-time Customers Find Stores?

Signtronix is a California-based sign manufacturer that creates signs for small independent businesses nationwide. From 1996 through 2011, it asked its customers (retailers) to ask their first-time customers (shoppers) how they first found out about their store. Over this 14-year period, 46% of these 13,040 first-time patrons said they’d heard about the retailer because of its on-premise sign. Other possible responses were “word of mouth,” (37%) and “Yellow Pages,” “newspaper,” “radio” and “television,” all at less than 10%. Here were some of the initial verbatim comments from new sign owners (as reported in the June 1998 issue of Signs of the Times magazine):

• From a Lebanon, IL cleaners: “We have added 20 new customers who didn’t know we were here.”

• From a Cedar Springs, MI picture framer: “Our business has increased 30-40% because of the sign.”

• From a Santee, SC BBQ restaurant: “In the first week of the sign being hung up, our business increased by at least 60-70%.”

• From a Bradley, IL comic-book store: “Ninety percent of the new customers came in because the sign attracted their attention.”

• From a Cookeville, TN tattoo shop:  “No more than 10 minutes after putting up the new sign, two customers pulled in.”

• From a Clover, SC flower shop, three weeks after getting a new sign: “I have gotten about 30 new customers.”

• A San Fernando, CA car dealer said sales increased by $6,000 net per week, so the sign paid for itself in less than a month. He decreased his other advertising from $16,000 to $12,000 per month.

How Does the Copyright Protection of the 1982 Lanham Act Affect Signs?

The Lanham Act, also known as the Trademark Act, was originally passed in 1946. It has been revised several times since then, including 1982, when it was revised by Sen. Orrin Hatch (R-UT) to prevent cities/municipalities from requiring businesses to alter federally registered trademarks. Section 1121(b) of the act states: “No state or other jurisdiction of the United States or any political subdivision or any agency thereof may require alteration[emphasis added] of a registered mark, or require that additional trademarks, service marks, trade names, or corporate names contemplated by the registered mark, as exhibited in the certificate of registration issued by the United States Patent and Trademark Office.”

This means that sign codes can’t constitutionally prevent copyrighted colors, logos, fonts, etc.,from being used on a sign. Perhaps the most significant court cases involved  Blockbuster and Video Update signs in notoriously strict Tempe, AZ . The city wasn’t allowed to force Blockbuster to change the blue color of its federally registered trademark to pink and white. Similarly, Video Update’s federally registered red color couldn’t be forced to adhere to shopping center’s mandate of white letters on a turquoise background. Blockbuster’s trademark also specifies a blue awning.

However, caution must be exercised because the Lanham Act doesn’t apply to landlords who might want to prohibit copyrighted colors, shapes, etc. It only addresses governmental prohibitions. A full discussion of this aspect appeared in the November 1998 issue of Signs of the Times magazine.

Is Your Sign Code Content Neutral? Reed v. Gilbert Warns that it Should Be.

Quite often, sign codes are primarily governed by their definitions. Many of the definitions are about types of signs: temporary, projecting, banners, fascia, freestanding, pole-mounted, etc. Quite often, however, signs are defined by their contentpolitical, real estate, commercial, yard sale, etc. If a sign is blank, you can still tell what kind of sign it is by the first grouping. However, for the second group of signs, you can only tell which type of sign it is by reading it.

This presents a problem if one group is given preferential treatment over another group. This concept is called content neutrality, and courts historically have been inconsistent in their rulings. However, that all changed on June 18, 2015, when the Supreme Court of the United States (SCOTUS) ruled unanimously in favor of content neutrality in Reed vs. Gilbert. Based on that ruling, a vast majority of existing sign codes, if challenged, would be ruled unconstitutional.

Clyde Reed’s church in Gilbert, AZ didn’t have a permanent home, so it needed to announce its location and topic each week on a sign. The Gilbert sign code deemed it a “temporary directional sign” and limited its size to 6 sq. ft., and a duration of 12 hours before the service, and one hour afterward. In contrast, “political signs” could be 32 sq. ft., and their duration was only limited to the election season.  A third category – “ideological signs” – which was a catch-all category, could be 20 sq. ft., with no time or placement restrictions.

For a city to enact content-based restrictions, it must employ “strict scrutiny,” which means it must demonstrate a “compelling interest,” and show that the restrictions are “narrowly tailored” to serve that interest.

Reed was originally cited for exceeding the time limits with his signs. He filed against these rulings and, amazingly, multiple appellate courts upheld the Gilbert sign code.

Justice Clarence Thomas, in delivering the opinion of the Court,  succinctly stated, “We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. . . The Town’s Sign Code is content based on its face . . . The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. . .”

In another landmark SCOTUS case in 1999, North Olmsted Chamber of Commerce v. City of North Olmsted, the city’s 1991 sign code was found to not be content neutral, along with the sign code en toto (entirely), so all of the sign code’s prohibitions were thrown out. An overview of that court case also appears in this website’s Sign Code section.

Read More: Here & Here.

Can the Loss of a Sign Cause a Successful Business to Fail? And Surrounding Businesses? And Hurt the Community?

In the mid-1990s, Terry Shulman’s was a successful drug store situated in the Gulf Gate Mall in Sarasota, Florida. It was located in the back side of the mall, so it couldn’t be seen from either of the two major arterial roads. However, it paid $3,500 for a freestanding pole sign. Its retail sales had increased 10-18% since it had relocated to the mall, and they peaked at $5 million.

The mall changed ownership. A new tenant, T.G.I.Friday’s, came, and its corporate policy demanded a pole sign. Without Shulman’s knowledge or consent, its freestanding was replaced with a T.G.I.Friday’s sign. Over the next four years, Shulman’s sales dropped by approximately $250,000 annually.

Analysts examined several possible factors. New competition, local economic indicators, physical indicators (ie, mall accessibility) and internal mall indicators were summarily dismissed. Analysts then queried shoppers and discovered 90% of all mall visitors shopped at Shulman’s.

Shulman’s went out of business. Its 20,000-sq.-ft. space remained vacant.

Six months later, a research team revisited the mall. Food-court sales were down at least 30%. Six stores that offered female-oriented goods had closed. Here are some other results:

• A certified appraisal calculated the value of the sign at $250,000 annually.

• The mall’s annual income dropped by $1 million.

• Two dozen employees lost their jobs.

• Sarasota lost $18,000 in sales-tax revenue.

Elsewhere in Florida, in Lake City, during the approximately same time period, a Rodeway Inn had a pole sign visible from I-75. The motel had 86% occupancy, gross sales of more than $600,000, and a profit of $128,000. The state route on which it was located was widened, and the Florida DOT took away the sign. The FDOT appraiser valued the sign at $7,000, based solely on its structure. The next year, motel occupancy fell to 42%; gross income dropped to $350,000, and profit plummeted 69% to $40,000. FDOT was faced with paying more than $400,000 for the taking, or paying $90,000 for a replacement sign. It chose the latter.