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May 3, 1972
Honorable R. Ted Bottiger
State Representative, 29th District
8849 Pacific Avenue
Tacoma, Washington 98444 Cite as: AGLO 1972 No. 29 (not official)
This is written in response to your recent request for an opinion of this office regarding the applicability of the Highway Advertising Control Act of 1961, chapter 96, Laws of 1961, as amended by Scenic Vistas Act of 1971, chapter 62, Laws of 1971, 1st Ex. Sess. (both codified in RCW Chapter 47.42 [[chapter 47.42 RCW]]), to signs along state highways advertising or informing of the existence of civic organizations or churches, or other non-commercial organizations.
We must advise you that these signs fall within the scope of the provisions of this state's sign control legislation as explained below.
The statute in question, RCW Chapter 47.42 [[chapter 47.42 RCW]], is of broad applicability. By its terms, all signs are prohibited along certain state highways unless specifically permitted to be erected or maintained.
RCW 47.42.030 provides:
Except as permitted under this chapter, no person shall erect or maintain a sign which is visible from the main traveled way of the interstate system, the primary system, or the scenic system. In case a highway or a section of highway is both a part of the primary system and the scenic system, only those signs permitted along the scenic system shall be erected or maintained.
Permissible signs are delineated in RCW 47.42.040:
It is declared to be the policy of the state that no signs which are visible from the main traveled way of the interstate system, primary system, or scenic system shall be erected or maintained except the following types: (1) Directional or other official signs or notices that are required or authorized by law; (2) Signs advertising the sale or lease of the property upon which they are located; (3) Signs advertising activities conducted on the property on which they are located; [[Orig. Op. Page 2]] (4) Signs, not inconsistent with the policy of this chapter and the national policy set forth in section 131 of title 23, United States Code as codified and enacted by Public Law 85-767 and amended only by section 106, Public Law 86-342, and the national standards promulgated thereunder by the secretary of commerce or the secretary of transportation, advertising activities being conducted at a location within twelve miles of the point at which such signs are located: Provided, That no sign lawfully erected pursuant to this subsection adjacent to the interstate system and outside commercial and industrial areas shall be maintained by any person after three years from May 10, 1971; (5) Signs, not inconsistent with the policy of this chapter and the national policy set forth in section 131 of title 23, United States Code as codified and enacted by Public Law 85-767 and amended only by section 106, Public Law 86-342, and the regulations promulgated thereunder by the secretary of commerce or the secretary of transportation, designed to give information in the specific interest of the traveling public: Provided, That no sign lawfully erected pursuant to this subsection adjacent to the interstate system and outside commercial and industrial areas shall be maintained by any person after three years from May 10, 1971. Only signs of type 1, 2 and 3 shall be erected or maintained within view of the scenic system.
What is considered to be a "sign" within the meaning of these provisions is defined in RCW 47.42.020 (8):
"Sign" means any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard or other thing which is designed, intended or used to advertise or inform any part of the advertising or informative contents of which is visible from any place on the main-traveled way of the interstate system or other state highway;
In light of the foregoing, it seems apparent that the legislature intended to prohibit all signs, excepting those specifically permitted, regardless of whether the sign communicates a commercial or a non-commercial message. We point to two reasons which can be gleaned from the above quoted provisions supportive of this conclusion.
First, neither the prohibitions of RCW 47.42.030 nor the exceptions of RCW 47.42.040 make any distinction as to the commercial or non-commercial message quality of signs, but both speak only in [[Orig. Op. Page 3]] terms of ". . . a sign". In the latter provision, non-commercial signs are not mentioned as exceptions. However, should a sign carrying a non-commercial message fall within any of the five exceptions listed therein, it will, subject to the other provisions of the act, be allowed to be maintained or erected. In this regard you will also note the conspicuous absence of the work "business" in subsection (3) which creates an exception for signs which advertise activities conducted on property on which they are located.
Secondly, the definition of "sign" covers anything "which is designed, intended or used to advertise or to inform . . ." Although the term "advertise" is often used in reference to a public announcement of a business undertaking, it does not necessarily imply a commercial activity in every context. Websters New International Dictionary, 2nd Edition (1962), p. 29. With the addition of the word "inform" the meaning of "advertise" and, accordingly the types of signs covered by the act, is properly taken to be broadened to include more than merely commercial messages.
Furthermore, our interpretation of the above provisions squares well with the legislative purposes of the act as set forth in opening section of RCW Chapter 47.42 [[chapter 47.42 RCW]]. This section, RCW 47.42.010, provides that:
The control of signs in areas adjacent to state highways of this state is hereby declared to be necessary to promote the public health, safety, welfare, convenience and enjoyment of public travel, to protect the public investment in the interstate system and other state highways, and to attract visitors to this state by conserving the natural beauty of areas adjacent to the interstate system, and of scenic areas adjacent to state highways upon which they travel in great numbers, and to insure that information in the specific interest of the traveling public is presented safely and effectively.
Since sign control is based on the dual goals of enhancement of public safety and promotion of the public welfare, all signs, without regard to the type of message conveyed, would necessarily have to be controlled. That this is a proper legislative purpose and that this statute is a proper implementation of that purpose has already been decided in the celebrated case of Markham Advertising Co. v. State, 73 Wn.2d 405, 439 P.2d 248 (1968), cert. denied 393 U.S. 1112 (1968).
Turning now to the question of permit requirements, RCW 47.42.120 provides as follows:
[[Orig. Op. Page 4]]
Notwithstanding any other provisions of this chapter, no sign except a sign of type 1 or 2 or those type 3 signs which advertise activities conducted upon the properties where such signs are located, shall be erected or maintained without a permit issued by the commission. Application for permit shall be made to the commission on forms furnished by it, which forms shall contain a statement that the owner or lessee of the land in question has consented thereto and shall be accompanied by a fee of ten dollars to be deposited with the state treasurer to the credit of the motor vehicle fund. Permits shall be for the calendar year and shall be renewed annually upon payment of said fee for the new year without the filing of a new application. Fees shall not be prorated for fractions of the year. Advertising copy may be changed at any time without the payment of additional fee. Assignment of permits in good standing shall be effective only upon receipt of written notice of assignment by the highway commission. A permit may be revoked after hearing if the commission finds that any statement made in the application therefor was false or misleading, or that the sign covered thereby is not in good general condition and in a reasonable state of repair, or is otherwise in violation of this chapter, provided that such false or misleading information has not been corrected and that the sign has not been brought into compliance with this chapter within thirty days after written notification thereof.
It will be seen that this statute does not require a civic organization or a church, or similar entity with a type 3 sign advertising or informing of activities conducted on its own property, to obtain a permit. However, if the sign of such an organization is not located on its premises and therefore comes under type 4, covering those signs which advertise activities being conducted at a location within twelve miles of the point at which they are located, a permit must be obtained in order for the sign to be maintained.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
JAMES P. WALSH
Assistant Attorney General