Legislature(2003 - 2004)

05/09/2003 08:54 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 230-POLITICAL SIGNS ON PRIVATE PROPERTY                                                                                    
                                                                                                                                
CHAIR WEYHRAUCH announced that the  first order of business would                                                               
be HOUSE  BILL NO. 230,  "An Act  relating to political  signs on                                                               
private property."  [Before the committee is CSHB 230(TRA).]                                                                    
                                                                                                                                
REPRESENTATIVE HOLM  said that  he would like  to go  through the                                                               
written  remarks   of  Mr.  Cantor,  Chief   Assistant  Attorney,                                                               
Department of Law, line by line.                                                                                                
                                                                                                                                
Number 0294                                                                                                                     
                                                                                                                                
TODD  LARKIN,  Staff to  Representative  Jim  Holm, Alaska  State                                                               
Legislature, turned  to Mr. Cantor's  written suggestions.   With                                                               
regard to [Section 2(a)(6)](B),  Mr. Cantor suggests the language                                                               
specify a  timeframe during which the  signs can be posted.   Mr.                                                               
Cantor  also suggests  inserting a  subparagraph (H)  in [Section                                                               
2(a)(6)]  that specifies,  "in this  section, 'private  property'                                                               
does not include that portion  of property subject to an easement                                                               
for public transportation."  Of  the related case law, almost all                                                               
of the  cases refer  to the concerns  surrounding the  time limit                                                               
while a  limited number of  cases refer to the  easement concern.                                                               
He noted  that he has  requested that  Mr. Cantor try  to produce                                                               
some  case   law  that   would  say   time  limits   or  easement                                                               
restrictions are  legal or have  been upheld by courts.   Without                                                               
the aforementioned,  amendments of  those type  would have  to be                                                               
avoided because  this legislation attempts  to open up  access to                                                               
constitutional rights.   Mr. Larkin  informed the  committee that                                                               
the committee  packet should  include the related  case law.   He                                                               
directed  attention to  the conclusion  on  page 7  of the  Larry                                                             
Whitton  v.  The City  of  Gladstone,  Missouri case,  a  federal                                                             
district case regarding time limits.   He then directed attention                                                               
to  page  6  of  the  VAN et  al  v.  Information  Council  which                                                             
specifies,   "Regulations  which   prohibit  all   political  and                                                               
ideological signs in a given location,  e.g., in a city or on the                                                               
state's   highways,   have   been    repeatedly   found   to   be                                                               
unconstitutional."                                                                                                              
                                                                                                                                
REPRESENTATIVE HOLM  interjected that  the cases that  Mr. Larkin                                                               
is  citing are  those  cases  that he  believes  will make  these                                                               
requests unconstitutional.   He  specified that the  requests are                                                               
for a 60-day  limit and clearly define that co-use  of the right-                                                               
of-way would not be allowed.   He noted that the members can read                                                               
the cases;  the interesting thing  is whether it could  be upheld                                                               
[in court].   The other issue  that needs to be  discussed is the                                                               
fact   that  the   regulatory  process   of  the   Department  of                                                               
Transportation  &  Public  Facilities   (DOT&PF)  could  be  done                                                               
knowing that  the department may face  a constitutional challenge                                                               
on occasion.                                                                                                                    
                                                                                                                                
Number 0748                                                                                                                     
                                                                                                                                
REPRESENTATIVE LYNN  highlighted that the next  election is going                                                               
to be a  year from this summer.  Therefore,  he questioned why he                                                               
shouldn't be able to put up a sign [in his yard].                                                                               
                                                                                                                                
MR. LARKIN  pointed out that  it appears  that all of  the courts                                                               
that   have   heard  the   above   argument   would  agree   with                                                               
Representative Lynn.                                                                                                            
                                                                                                                                
REPRESENTATIVE  SEATON related  his understanding  that any  time                                                               
limit, including "temporary" would be unconstitutional.                                                                         
                                                                                                                                
MR.  LARKIN recalled  that  one  of the  cases  in the  committee                                                               
packet  mentioned  "temporary" in  a  city  ordinance, which  was                                                               
struck  down.   Mr.  Larkin  said  that the  aforementioned  city                                                               
ordinance may have been struck  down because the city didn't have                                                               
a severability clause.   The original version of  HB 230, Version                                                               
H, included language that specified that  the "signs are not on a                                                           
permanent  base"  and  thus  the   sign  could  be  in  place  in                                                           
perpetuity.   However, someone posed  a situation in  which there                                                               
was  a permanent  base for  a temporary  sign, which  the sponsor                                                               
considered a friendly amendment.   He suggested asking the DOT&PF                                                               
representative whether, for  enforcement purposes, the department                                                               
preferred the language in the original legislation.                                                                             
                                                                                                                                
REPRESENTATIVE  HOLM pointed  out that  [already existing]  signs                                                               
with a permanent  base being used for another  purpose often have                                                               
political signs  below [the permanent  sign].  He said  he didn't                                                               
want to  infringe on that  right.  Representative Holm  turned to                                                               
Mr. Cantor's written suggestion  [to include subparagraph (G)] as                                                               
follows:   "this section does not  authorize indirect advertising                                                               
of  commercial products".   Representative  Holm  said he  wasn't                                                               
sure how the aforementioned applied to political signs.                                                                         
                                                                                                                                
Number 1040                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON  referred  to   a  letter  from  the  U.S.                                                               
Department of  Transportation dated April  21, 2003.   The letter                                                               
specifies:   "The most recent  Supreme Court case  on residential                                                               
signs, City  Ladue v.  Gilleo, 114 S.Ct.  2038 (1994),  held that                                                             
residential  signs expressing  political, religious,  or personal                                                               
messages,  were an  important and  distinct medium  of expression                                                               
that  deserved protection."   Furthermore,  the letter  specifies                                                               
that the signs  should be temporary in nature.   He asked if this                                                               
letter is in reference to the original HB 230.                                                                                  
                                                                                                                                
MR.  LARKIN answered  that  the  letter is  in  reference to  the                                                               
original HB 230  and the non-permanent base  wording was inserted                                                               
to  satisfy the  U.S. Department  of Transportation.   Therefore,                                                               
some reference  to permanency should  remain in order  to address                                                               
the federal agency's  concern.  Mr. Larkin pointed  out that this                                                               
is a  tangled web that  tries to  use language that  stays within                                                               
constitutional constraints as  well as the wishes  of the federal                                                               
government.      He   noted  that   this   legislation   includes                                                               
restrictions that wouldn't be present  had the federal government                                                               
not requested them.                                                                                                             
                                                                                                                                
MR. LARKIN  emphasized that this legislation  was structured with                                                               
regard  to what  is and  isn't constitutional.   Since  all time-                                                               
limit restraints have  been struck down when heard  in court, the                                                               
sponsor has attempted to address  the concerns of those who don't                                                               
want  perpetual  litter as  well  as  the department's  need  for                                                               
enforcement  power.    The aforementioned  led  to  the  language                                                               
defining "current  relevance" and  "date of decision."   Although                                                               
the aforementioned  may be unconstitutional, Mr.  Larkin believes                                                               
the language  is crafted  such that  the court  could view  it as                                                               
reasonable.   The bill  speaks to  content, which  is one  of the                                                               
things  the   courts  review  regarding  whether   [a  state]  is                                                               
unconstitutionally  restricting free  speech.   However,  leaving                                                               
political  signs  as  a  broad term  doesn't  actually  create  a                                                               
restriction but  rather creates access.   Therefore, even  if the                                                               
content clause  would come  into play,  Mr. Larkin  didn't expect                                                               
any  challenges  because the  language  is  allowing rather  than                                                               
restricting.   Mr.  Larkin acknowledged  that  there are  already                                                               
constitutional questions  for the  legislation and  remarked that                                                               
it's better to pass a law  and maintain some state control rather                                                               
than allow the courts to strike it down and permit everything.                                                                  
                                                                                                                                
Number 1378                                                                                                                     
                                                                                                                                
JIM CANTOR,  Chief Assistant Attorney, General  Statewide Section                                                               
Supervisor, Transportation  Section, Civil  Division (Anchorage),                                                               
Department of Law,  began with the easement issue.   He explained                                                               
that most  highways are  easements and  most easements  in Alaska                                                               
were  created as  a matter  of property  law through  public land                                                               
orders,  including Public  Land Order  1613.   Public Land  Order                                                               
1613 includes  language specifying  that the  underlying property                                                               
owner can't  do anything in the  easement without a permit.   Mr.                                                               
Cantor  said that  he wasn't  familiar with  any of  the easement                                                               
cases that Mr.  Larkin mentioned.  The U.S.  Supreme Court upheld                                                               
an  ordinance   that  prohibited   political  signs   within  the                                                               
easement.   He explained that  modern highways were  designed and                                                               
courts enforce  the "clear  zone" concept,  which is  basically a                                                               
zone in which a car can  accidentally leave the road and not bump                                                               
into  anything  dangerous.    The  clear  zone  varies  in  width                                                               
depending upon the  speed of the road and the  shape of the road.                                                               
Giving a carte blanche that allows  people to place things in the                                                               
easement  creates a  public safety  issue.   Subparagraph (H)  he                                                               
proposed   in    his   written   remarks   would    address   the                                                               
aforementioned.  Mr. Cantor acknowledged  that DOT&PF believes it                                                               
would  have the  authority under  existing law,  but pointed  out                                                               
that it's being litigated.                                                                                                      
                                                                                                                                
MR. CANTOR turned to his  suggestion to explicitly specify that a                                                               
political sign  is a noncommercial  sign.  The  aforementioned is                                                               
important  in clarifying  the committee's  intent.   Although the                                                               
committee has been discussing political  signs as campaign signs,                                                               
political  signs address  a number  of  issues beyond  campaigns.                                                               
Mr. Cantor explained that he  proposed a time limitation in order                                                               
to  have a  definitive  marker.   He  emphasized  that the  basic                                                               
constitutional rule from  the early part of the  last century was                                                               
that the government  has the right to limit the  time, place, and                                                               
manner of  speech.  Mr.  Cantor noted that  at the same  time the                                                               
least  restrictive  means  is  attempted,  one  doesn't  allow  a                                                               
government  official   to  make   content  determinations.     He                                                               
expressed  concern that  the definitions  of "current  relevance"                                                               
and "date  of decision" require  a government official to  make a                                                               
content determination regarding whether  an issue is really over.                                                               
The  "temporary" rule  is difficult  to enforce  and thus  a time                                                               
limitation [is  in order].   He informed  the committee  that the                                                               
cases  he has  seen deal  with 30-,  60-, and  90-day timeframes.                                                               
Furthermore, the  cases are generally  brought by  candidates who                                                               
often  say  that  it  takes  a candidate  a  long  time  to  make                                                               
himself/herself familiar  to the community, and  two months isn't                                                               
enough  time  to do  so.    Mr. Cantor  said  that  there are  no                                                               
challenges to long periods of time.   If a long period of time is                                                               
specified, the government official is provided a clean target.                                                                  
                                                                                                                                
Number 1754                                                                                                                     
                                                                                                                                
REPRESENTATIVE  LYNN  related  his understanding  that  both  the                                                               
property  owner  and  the  owner  of the  easement  can  use  the                                                               
easement.  However,  he said he understood that the  owner of the                                                               
easement has priority for the purpose of the easement.                                                                          
                                                                                                                                
MR. CANTOR remarked  that easement is a broad term  under the law                                                               
meaning that  there is some  sort of  right to cross  and utilize                                                               
some portion  of land.   Therefore, this would be  dependent upon                                                               
the  wording  of  the  easement; in  fact,  there  are  exclusive                                                               
easements.  He  noted that highway easements under  PLO 1613 take                                                               
virtually all of  the rights of the property owner.   However, it                                                               
allows  the  property  owner  to  apply  for  a  permit.    Other                                                               
easements aren't so exclusive, such as section line easements.                                                                  
                                                                                                                                
REPRESENTATIVE LYNN  mentioned that he  has an easement  in front                                                               
of  his property  and he  can plant  a tree  on it  if he  wants.                                                               
However, the  "road people" can cut  that tree if they  choose to                                                               
widen the road.  He said  he thought the same [logic] would apply                                                               
to a political sign.                                                                                                            
                                                                                                                                
MR. CANTOR reiterated that easements  vary from parcel to parcel.                                                               
For the main  state roads, which is what  [DOT&PF] regulates, the                                                               
property owners' use is constrained.                                                                                            
                                                                                                                                
Number 1916                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM surmised that  Mr. Cantor is delineating that                                                               
roads  are state  roads because  of  state money  put into  them.                                                               
However, he  pointed out that  in Fairbanks there have  been many                                                               
cases in  which signs were  taken down because federal  money had                                                               
been used to refurbish a  road in downtown Fairbanks.  Therefore,                                                               
these  aren't specifically  state-owned  roads.   He assumed  the                                                               
same would be true in Anchorage and Juneau as well.                                                                             
                                                                                                                                
REPRESENTATIVE  SEATON turned  to  Mr.  Cantor's suggestion  with                                                               
subparagraph  (C)  regarding  marking   the  date  the  sign  was                                                               
installed.  He asked if the aforementioned is for enforcement.                                                                  
                                                                                                                                
MR. CANTOR replied yes.                                                                                                         
                                                                                                                                
CHAIR  WEYHRAUCH  remarked  that Mr.  Cantor's  suggestions  seem                                                               
similar  to the  rules regarding  posting signs  in state  office                                                               
buildings.                                                                                                                      
                                                                                                                                
MR. CANTOR said he wasn't familiar with those rules.                                                                            
                                                                                                                                
Number 2028                                                                                                                     
                                                                                                                                
REPRESENTATIVE   LYNN   directed   attention  to   Mr.   Cantor's                                                               
suggestion with subparagraph (F) and  commented that he knew of a                                                               
candidate  who  paid $20  to  place  a  sign in  a  noncommercial                                                               
location.     Representative  Lynn   asked  if  Mr.   Cantor  was                                                               
suggesting that a  candidate could pay to place  a political sign                                                               
in a location.                                                                                                                  
                                                                                                                                
MR. CANTOR  said he  wasn't aware  from where  [subparagraph (F)]                                                               
came, however, he  suspected that it evolved from  the fears that                                                               
the commercial  sign industry  would view this  as a  new revenue                                                               
source.                                                                                                                         
                                                                                                                                
CHAIR  WEYHRAUCH  pointed  out  that  subparagraph  (E)  of  CSHB                                                               
230(TRA) includes the language specified  in Mr. Cantor's written                                                               
remarks regarding subparagraph (F).                                                                                             
                                                                                                                                
REPRESENTATIVE HOLM  noted that  people who  own bus  benches are                                                               
already allowed to charge people  to place political signs on the                                                               
benches.   Furthermore, borough-owned  buses are allowed  to have                                                               
political and  commercial signs on  the bus.  Therefore,  he said                                                               
he didn't believe this is  an issue that [the legislation] should                                                               
enter into.                                                                                                                     
                                                                                                                                
Number 2150                                                                                                                     
                                                                                                                                
MICHAEL DOWNING,  Director/Chief Engineer, Division  of Statewide                                                               
Design  & Engineering  Services, Department  of Transportation  &                                                               
Public  Facilities (DOT&PF),  clarified that  the department  has                                                               
expertise in the management and  operations of the highway system                                                               
but  [DOT&PF]  isn't an  expert  in  free  speech.   Mr.  Downing                                                               
explained  that  he  is  seeking   elegance  and  craft  in  this                                                               
legislation  such  that the  department  isn't  left to  complete                                                               
issues  that have  been left  unfinished.   At  some point,  this                                                               
legislation has  to be  interpreted in  real life,  and therefore                                                               
Mr. Downing  said that  he is seeking  enough definition  so that                                                               
the department isn't  left to define things  that the legislature                                                               
feels it can't.                                                                                                                 
                                                                                                                                
REPRESENTATIVE HOLM  commented that  in the  past DOT&PF  has, by                                                               
removing  or not  removing signs  from certain  places, exercised                                                               
political  will based  upon the  political beliefs  of those  who                                                               
worked for  DOT&PF.  Representative Holm  specified that [through                                                               
this legislation] he  is trying to eliminate the  need for DOT&PF                                                               
to   make  such   decisions   by  defining   that   there  is   a                                                               
constitutional right  to freedom  of political expression.   This                                                               
legislation  attempts to  provide  direction  to the  department.                                                               
However,  Representative  Holm  said  he  wasn't  sure  that  the                                                               
legislature  could   define  the  department's  actions.     This                                                               
legislation  tries  to err  on  the  side  of the  individual  to                                                               
express  his/her  free  speech  while not  placing  a  burden  on                                                               
DOT&PF.   With  regard  to  marking the  sign  with  the date  of                                                               
installation, Representative  Holm pointed  out that it  would be                                                               
problematic for  those who run  year after year and  reuse signs.                                                               
He said this comes down to  the following question:  "Do you have                                                               
a right to have a sign for 10  years on your property if you want                                                               
to?"   This legislation merely  addresses whether a person  has a                                                               
right to  express himself/herself without placing  the department                                                               
in the inappropriate position of making those decisions.                                                                        
                                                                                                                                
Number 2423                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG posed  an example of a  person who wants                                                               
to  keep a  political  sign  on his/her  property  for years  and                                                               
inquired as to why that individual  wouldn't have that right.  He                                                               
said it  seems to him that  "current relevance" is in  the eye of                                                               
the beholder.   He indicated that it is up  to the property owner                                                               
when  the  sign comes  down  due  to  the individual's  right  to                                                               
express himself/herself.                                                                                                        
                                                                                                                                
CHAIR WEYHRAUCH  pointed out that  these statues  were originally                                                               
proposed by  a group of  individuals who were incensed  by signs,                                                               
billboards, and  posters.  There  was the notion that  the public                                                               
didn't want  the aforementioned visual pollution.   Therefore, by                                                               
referendum  or initiative  it was  placed  on the  books.   Chair                                                               
Weyhrauch  said  that  there  seems   to  be  a  tension  between                                                               
accommodating  First   Amendment  rights  and   private  interest                                                               
against the  public's desire to  have an environment as  clean as                                                               
possible.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG  said that Chair Weyhrauch  is referring                                                               
to the ballot  measure that said, "It's the intent  of the people                                                               
that  Alaska  shall  remain  forever  free  of  billboards."    A                                                               
billboard is an outdoor commercial advertisement.                                                                               
                                                                                                                                
MR.  DOWNING,  in response  to  Chair  Weyhrauch, specified  that                                                               
Title 19 defines  "billboard," which seems to  be very inclusive.                                                               
Mr.  Downing related  his understanding  that  the definition  of                                                               
"billboard"  would not  be limited  to  commercial [signage]  but                                                               
rather  refers  to   any  device  intended  to   distract.    The                                                               
aforementioned definition has led to some confusion, he said.                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  remarked that  what is  being discussed                                                               
is a  classic example of  why the separation of  powers provision                                                               
is coupled with the free speech  provision in the Bill of Rights.                                                               
Under the  constitution, there  is sometimes  a higher  good that                                                               
may be more  important than the popular will, which  is the right                                                               
of  [an  individual's] free  expression  on  a matter  of  public                                                               
importance.  This issue is the right to speak.                                                                                  
                                                                                                                                
Number 2665                                                                                                                     
                                                                                                                                
REPRESENTATIVE SEATON  said that he  didn't believe it's  fair to                                                               
use  the  "temporary"  language,   which  leaves  DOT&PF  in  the                                                               
position  of deciding  when to  take down  what signs.   Allowing                                                               
DOT&PF  to use  its judgment  is  exactly what  the committee  is                                                               
saying that it doesn't want to do.                                                                                              
                                                                                                                                
REPRESENTATIVE HOLM  reiterated that the [department's]  abuse of                                                               
this was  the reason behind  this legislation.  If  the committee                                                               
wants to  remove line  18 on  page 2,  he said  he didn't  have a                                                               
problem  with  that.   Representative  Holm  explained that  this                                                               
legislation  has  been  crafted  so that  it  allowed  DOT&PF  to                                                               
approach  the  unconstitutionality of  being  able  to remove  an                                                               
individual's  right  to speech.    Although  this language  is  a                                                               
potential constitutional challenge, it's  done for the purpose of                                                               
trying to  be responsible to  the request by  the administration.                                                               
He  mentioned  that  ideally he  wouldn't  want  any  restriction                                                               
whatsoever save the  one regarding the signs that  pose a traffic                                                               
hazard.  The  language was crafted to help DOT&PF  not hinder the                                                               
department.  "If  you don't want it  in there, we can  get rid of                                                               
it all," he concluded.                                                                                                          
                                                                                                                                
REPRESENTATIVE SEATON  commented that he didn't  believe laws are                                                               
challengeable rather  actions are  challengeable.   Therefore, it                                                               
doesn't matter  what is in  the legislation because there  has to                                                               
be a  case.  Representative  Seaton interpreted  this legislation                                                               
to mean that the department  must create regulations based on its                                                               
judgment in  order to  make a  case and go  to court  because the                                                               
legislature couldn't decide what to tell the department.                                                                        
                                                                                                                                
Number 2905                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM  interjected that the above  has already been                                                               
done  through the  department's  ability  to have  rights-of-way.                                                               
The DOT&PF  has been charged  with making sure that  the highways                                                               
and  rights-of-way are  safe  for  the public.    Because of  the                                                               
aforementioned,  the legislature  hasn't  specified  when and  if                                                               
action is taken  but rather when and if there  is an obstruction,                                                               
which  is defined.   Representative  Holm  related that  [through                                                               
this legislation]  he is trying  to not  be too specific  so that                                                               
the department is free to do its business.                                                                                      
                                                                                                                                
REPRESENTATIVE SEATON said that he  didn't have any problems with                                                               
the obstruction part of the legislation.                                                                                        
                                                                                                                                
TAPE 03-60, SIDE B                                                                                                            
                                                                                                                                
REPRESENTATIVE   SEATON  related   his  understanding   that  the                                                               
intention is  to craft legislation  that allows  political speech                                                               
within  the limitations  such as  the "temporary".   Furthermore,                                                               
the  aforementioned is  being done  outside of  the safety  issue                                                               
that  should  be taken  up  by  the department.    Representative                                                               
Seaton  expressed  concern  with   regard  to  asking  DOT&PF  to                                                               
promulgate  regulations that  have to  be vague  because whatever                                                               
regulations are promulgated will probably be unconstitutional.                                                                  
                                                                                                                                
Number 2890                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  if  any legal  opinion has  been                                                               
requested on HB 230.                                                                                                            
                                                                                                                                
CHAIR WEYHRAUCH  said that no  one has submitted a  legal opinion                                                               
to the committee.                                                                                                               
                                                                                                                                
MR.  LARKIN mentioned  that there  was a  verbal discussion  with                                                               
Legislative Legal  and Research  Services, which  highlighted the                                                               
possible  problems   with  content  and  the   date  of  decision                                                               
concerns.   He  pointed  out that  the  amorphous language  isn't                                                               
necessary;  rather  it's  an  attempt   to  give  DOT&PF  passive                                                               
enforcement.    This  legislation  attempts to  allow  DOT&PF  to                                                               
extricate  itself from  this enforcement  quagmire and  then make                                                               
its  regulatory  requirements.    He  specified  that  DOT&PF  is                                                               
covered by  the language  on page  2, lines  19-20.   However, he                                                               
acknowledged that  the language  "or maintenance" could  be added                                                               
so that maintaining the road's shoulder would be addressed.                                                                     
                                                                                                                                
Number 2754                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
[Amendment 1], which read as follows:                                                                                           
                                                                                                                                
     Page 2, line 18                                                                                                            
          Delete subparagraph (B)                                                                                               
                                                                                                                                
REPRESENTATIVE HOLM said [Amendment 1] is acceptable.                                                                           
                                                                                                                                
There being no objection, Amendment 1 was adopted.                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that Mr.  Cantor's written                                                               
suggestions  for   paragraph  (6)  have  inserted   the  ",  non-                                                               
commercial" language.  Representative  Gruenberg said he believes                                                               
the  aforementioned  clarifies  the intent  of  the  legislation.                                                               
Therefore,  Representative  Gruenberg  moved that  the  committee                                                               
adopt [Amendment 2] as follows:                                                                                                 
                                                                                                                                
     Page 2, line 15, after "political"                                                                                     
          Insert "non-commercial"                                                                                               
                                                                                                                                
There being no objection, Amendment 2 was adopted.                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG   turned  attention  to   Mr.  Cantor's                                                               
suggestion to  insert a new  subparagraph (G) and moved  that the                                                               
committee  adopt Conceptual  [Amendment  4],  which would  insert                                                               
language  saying,  "this  section  does  not  authorize  indirect                                                               
advertising of commercial products".                                                                                            
                                                                                                                                
REPRESENTATIVE  HOLM  inquired as  to  what  that language  would                                                               
mean.                                                                                                                           
                                                                                                                                
MR.  CANTOR recalled  that the  concept stemmed  from the  letter                                                               
from the Federal Highway  Administration (FHWA) regarding whether                                                               
this legislation would  be acceptable with federal  funding.  The                                                               
[FHWA] included  this as a concern.   Currently, there is  a case                                                               
before the U.S. Supreme Court  involving letters sent out by Nike                                                               
regarding how  well it  treats its employees  in Asia.   Although                                                               
Nike says  that letter  was informational  under the  free speech                                                               
clause  while others  say  that it's  commercial  speech the  end                                                               
product of which is to sell Nike shoes.                                                                                         
                                                                                                                                
REPRESENTATIVE LYNN posed a case in  which a candidate who owns a                                                               
business notes  his business on  his campaign signs and  asked if                                                               
that would be considered indirect advertising.                                                                                  
                                                                                                                                
MR. CANTOR  remarked that with free  speech there is a  very fine                                                               
line between satire and commercial advertising.                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew [Conceptual Amendment 3].                                                                     
                                                                                                                                
Number 2420                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  directed attention to page  2, line 25,                                                               
the last  word of  which is "or"  while Mr.  Cantor's suggestions                                                           
use "and".                                                                                                                      
                                                                                                                                
MR. CANTOR indicated that it was a typographical error.                                                                         
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
[Amendment 4] as follows:                                                                                                       
                                                                                                                                
     Page 2, line 25,                                                                                                           
          Delete "or"                                                                                                       
          Insert "and"                                                                                                          
                                                                                                                                
There being no objection, Amendment 4 was adopted.                                                                              
                                                                                                                                
MR. CANTOR,  in response to  Representative Gruenberg,  said that                                                               
his written  testimony regarding  paragraph (6)  subparagraph (A)                                                               
the word "and"  instead of "or" was a typographical  error on his                                                               
part.                                                                                                                           
                                                                                                                                
Number 2310                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG turned  to page 3, lines  5-6.  However,                                                               
he pointed  out that if  an individual  is running for  office or                                                               
has a campaign for a  ballot measure, the television or newspaper                                                               
would be paid to carry  the advertising, or the person delivering                                                               
flyers  may  be  paid.   Therefore,  he  questioned  why  someone                                                               
shouldn't   be  able   to  pay   someone  to   put  up   a  sign.                                                               
Representative Gruenberg  offered to delete the  language on page                                                               
3, lines 5-6.                                                                                                                   
                                                                                                                                
CHAIR WEYHRAUCH inquired as to how that provision was included.                                                                 
                                                                                                                                
MR. LARKIN  recalled that perhaps  it was a suggestion  by [Legal                                                               
and  Research Services]  or it  may be  referenced in  the letter                                                               
from the FHWA.   After listening to the debate,  he said that the                                                               
provision probably isn't necessary.                                                                                             
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 5 as follows:                                                                                                         
                                                                                                                                
     Page 3, line 4,                                                                                                            
          Delete "; and"                                                                                                    
          Insert "."                                                                                                            
          Delete lines 5-6                                                                                                      
                                                                                                                                
There being no objection, Amendment 5 was adopted.                                                                              
                                                                                                                                
Number 2186                                                                                                                     
                                                                                                                                
REPRESENTATIVE SEATON  mentioned that  his community is  going to                                                               
be  upset   when  the  rights-of-way   are  filled   with  signs.                                                               
Therefore, he moved that that  the committee adopt [Amendment 6],                                                               
which  would incorporate  subparagraph (H),  as suggested  in Mr.                                                               
Cantor's written comments.  Subparagraph (H) would read:                                                                        
                                                                                                                                
      in this section, "private property" does not include                                                                      
      that portion of property subject to an easement for                                                                       
     public transportation.                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM  objected and  remarked that he  believes the                                                               
above language is blatantly unconstitutional.                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON reminded  the  committee  of Mr.  Cantor's                                                               
testimony that  a property  owner doesn't have  the right  to put                                                               
anything  within  the  state   right-of-way,  the  "clear  zone,"                                                               
without  a permit.   Therefore,  if signs  can be  placed in  the                                                               
right-of-way, then  so can bird  feeders, trees, et  cetera until                                                               
it's determined to be a hazard.                                                                                                 
                                                                                                                                
REPRESENTATIVE  HOLM  disagreed  and  interjected  that  in  some                                                               
rights-of-way trees can be planted [without obtaining a permit].                                                                
                                                                                                                                
Number 2051                                                                                                                     
                                                                                                                                
MR. DOWNING referred to the  FHWA's letter regarding whether this                                                               
legislation complies  with the Highway Beautification  Act (HBA).                                                               
He said  that it's worth  asking whether signs within  the right-                                                               
of-way violate  HBA.   He noted his  suspicion that  signs within                                                               
the right-of-way violate HBA.                                                                                                   
                                                                                                                                
MR. CANTOR  related that  in response to  other states  that have                                                               
asked the above question, [the  federal government] backed off on                                                               
strict  enforcement  with  private  property  while  still  being                                                               
protective of  the right-of-way.   As a  tort lawyer,  Mr. Cantor                                                               
informed the  committee that  Alaska had a  "clear zone"  case in                                                               
which there was  a rock in the right-of-way.   The state won that                                                               
case on summary  judgment, but only after spending  $290,000.  He                                                               
also noted that the state could've  just as easily lost and spent                                                               
more that it  did.  "Having things  in the 'clear zone'  can be a                                                               
very expensive proposition," he said.                                                                                           
                                                                                                                                
MR. LARKIN pointed  out that the FHWA's letter  does address this                                                               
matter as  follows:  "Despite  these concerns, the FHWA  does not                                                               
believe that  the proposed  changes to  Alaska law  would violate                                                               
the HBA."   Mr. Larkin  highlighted that the federal  HBA doesn't                                                               
regulate  these  rights-of-way   under  discussion  because  they                                                               
simply withhold money and allow  the state to regulate the right-                                                               
of-way.  In response to  Representative Seaton, Mr. Larkin agreed                                                               
that the  federal government  expresses its  dislike of  signs in                                                               
the  right-of-way   by  saying   that  the  U.S.   Department  of                                                               
Transportation has the  authority to impose a  10 percent penalty                                                               
on federal aid if it's  determined that the state is noncompliant                                                               
with HBA.   In cases in which the  right-of-way distinctions have                                                               
been struck down, the states he researched didn't lose money.                                                                   
                                                                                                                                
CHAIR  WEYHRAUCH  reminded  the  committee of  the  objection  to                                                               
Amendment 6.                                                                                                                    
                                                                                                                                
A  roll  call  vote  was   taken.    Representatives  Seaton  and                                                               
Dahlstrom  voted  in  favor  of  the  adoption  of  Amendment  6.                                                               
Representatives  Holm,  Lynn,   Gruenberg,  and  Weyhrauch  voted                                                               
against it.  Therefore, Amendment 6 failed by a vote of 2-4.                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  [moved  to report  CSHB  230(TRA),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying fiscal notes].                                                                                                 
                                                                                                                                
MR. DOWNING informed the committee that  in 1997 SB 56 passed and                                                               
it allowed "Todd" signs, which are  a regulated sign to be placed                                                               
on private property  adjacent to the highway.   That legislation,                                                               
SB  56, was  what  caused  the reaction  that  occurred with  the                                                               
referendum.   He  pointed out  that HB  230 is  considerably more                                                               
advertising than [the "Todd" signs].                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  remarked that  HB 230 involves  a basic                                                               
constitutional right while SB 56 involved a [political] sign.                                                                   
                                                                                                                                
MR. DOWNING  agreed that  the "Todd"  signs are  commercial while                                                               
those addressed in HB 230 are political signs.                                                                                  
                                                                                                                                
CHAIR  WEYHRAUCH,  upon  determining   there  was  no  objection,                                                               
announced that CSHB 230(STA) was reported from committee.                                                                       
                                                                                                                                

Document Name Date/Time Subjects