Existing law authorizes the display of the Flag of the United States of America and the Flag of the State of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flagholder and the method of its installation and maintenance are not in violation of the Department of Transportations rules.

This bill would authorize a city or county to display the Flag of the United States of America or the Flag of the State of California, or both, as part of a gateway monument, as defined.

Existing law authorizes the display of the Flag of the United States of America and the Flag of the State of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flagholder and the method of its installation and maintenance are not in violation of the Department of Transportations rules.

This bill would authorize a city or county to display the Flag of the United States of America or the Flag of the State of California, or both, as part of a gateway monument, as defined.

Existing law authorizes the display of the Flag of the United States of America and the Flag of the State of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flagholder and the method of its installation and maintenance are not in violation of the Department of Transportations rules.

This bill would authorize a city or county to display the Flag of the United States of America or the Flag of the State of California, or both, as part of a gateway monument, as defined.

Existing law authorizes the display of the Flag of the United States of America and the Flag of the State of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flagholder and the method of its installation and maintenance are not in violation of the Department of Transportations rules.

This bill would authorize a city or county to display the Flag of the United States of America or the Flag of the State of California, or both, as part of a gateway monument, as defined.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 866

Author:(Cunningham)

As Amended Ver:July 5, 2017

Majority vote

Original Committee Reference: JUD.

SUMMARY:

1. Authorizes a city or county to display the Flag of the United States of America or the Flag of California, or both, as part of a gateway monument if the flags are maintained by the city or county.
2. Defines "gateway monument" to mean any freestanding structure or sign, or non-integral or non-required highway feature, constructed within the state's right-of-way, which communicates the name of the city or county.

The Senate amendments add co-authors and make one technical amendment.

EXISTING LAW authorizes the display of the Flag of the United States of America or Flag of the State of California to be displayed on a sidewalk located in or abutting on a state highway situated within a city, if the type of flagholder and the method of its installation and maintenance are not in violation of the Department of Transportation's rules. (Streets and Highways Code Section 670.5.)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: Existing law authorizes the display of the Flag of the United States or the Flag of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag and the methods of installation and maintenance do not violate Department of Transportation rules. This bill would, additionally, authorize a city or county to display the United States (U.S.) or California flag, or both, as part of a "gateway monument." A gateway monument includes any freestanding structure or sign, constructed within the state's right of way, which communicates the name of the city or county to motorists or others as they enter the city of county.

According to the author, this bill is necessary because of a policy that the Department of Transportation adopted in response to a 2003 decision by the U.S. Ninth Circuit Court of Appeals in Brown v. California Department of Transportation. In that case, private individuals had hung American flags from a highway overpasses along Highway 17 near Santa Cruz, apparently in response to the September 11, 2001, terrorist attacks. Subsequently, two other persons hung an anti-war banner next to the flags, apparently in response to President Bush's claim that the nation was now engaged in a "war" on terror. Although the banners were apparently removed by a Scotts Valley police officer, the Department of Transportation stated in its pleadings that it would have removed them for traffic safety reasons, because a banner may only be hung from a highway overpass pursuant to an authorizing permit. The American flag, however, was not removed, though apparently whoever hung the flag had not acquired a permit and the flag was arguably just as distracting to motorists as the banner. The Ninth Circuit affirmed a district court injunction against the department's policy of exempting American flags from permit requirements but requiring permits for, or prohibiting altogether, the display of all other expressive signs and banners. (Brown v. California Department of Transportation (2003) 321 F.3d 1217.) In short, the First Amendment requires the department to treat flags and expressive banners equally, either requiring both to have a permit or requiring neither to have a permit.

The Judiciary Committee has been unable to confirm the author's claim that the Ninth Circuit ruling caused the Department of Transportation to prohibit any flags on any state right-of-way. If the department did prohibit all flags in the manner suggested by the author, it was certainly not required to do so by the Ninth Circuit ruling. The department is still free to ban all flags and banners, freely allow all flags and banners, or only allow flags and banners pursuant to a permit. Moreover, the issue in Brown involved flags and banners hung from a highway overpass, which may present unique safety concerns, not with flags displayed as part of a gateway monument. Finally, the Brown ruling did not prohibit the department from authorizing flags. The Brown ruling merely said that, if the department has a policy on permitting flags and banners, the policy must be "reasonable." The court concluded that the department's apparent policy of allowing flags without a permit was unreasonable because there was no discernable difference between the distraction caused by a flag and the distraction caused by a similarly sized banner.

According to the author, "CalTrans currently does not allow the Flag of the United States of America, nor the flag of the State of California, on state right of ways, including gateway monuments." The author claims that in the wake of Brown v. Department of Transportation, the department "overcorrected by disallowing all flags on state right of ways." This bill will correct that overcorrection, the author believes, by expressly allowing the display of the flag on gateway monuments.

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0001147

 CONSENT  

Bill No: AB 866

Author:

:

Vote:

SENATE TRANS. & HOUSING COMMITTEE: 12-0, 6/27/17

AYES: Beall, Cannella, Allen, Atkins, Bates, Gaines, McGuire, Mendoza, Morrell, Roth, Wieckowski, Wiener

NO VOTE RECORDED: Skinner

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 77-0, 5/11/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill allows cities or counties to display the United States flag and/or the California state flag as part of a gateway monument so long as the flags are maintained by the city or county.

ANALYSIS: Existing law authorizes the Flag of the United States of America and the Flag of the State of California to be displayed on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag holder and the method of its installation and maintenance are not in violation of the Department of Transportation’s (Caltrans) rules.

This bill:

1. Authorizes a city or county to display the Flag of the United States of America or the Flag of the State of California, or both, as part of a gateway monument if the flags are maintained by the city or county.
   
2. Defines a “gateway monument” as any freestanding structure or sign, or non-integral or non-required highway feature, constructed within the state’s right-of-way, which communicates the name of the city or county.

Comments

1. Purpose. According to the author, “By California law, The Flag of the United States of America flies over every public building; every state park; every university, college, high school, and elementary school campus; every agricultural station; every highway maintenance section; and at all games in stadiums or bowls throughout California. But the California Department of Transportation forbids the Flag of the United States and the Flag of the State of California from flying over gateway monuments. AB 866 updates the [statutory authority of the] California Department of Transportation to allow the Flag of the United States of America and the Flag of the State of California over gateway monuments (monuments communicating the name of a city or county).”
   
2. Gateway monuments. A gateway monument, which is defined by this bill, is a freestanding sign or structure along a highway that displays the name of the city and often contains the city’s seal or slogan. Differing from a community identification sign that may be painted onto an existing feature like a bridge, gateway monuments are considered to be discretionary fixed objects; they’re neither integrated with nor placed upon any required engineered transportation feature like a bridge, but rather stand alone. According to Caltrans’ documentation, the monuments are proposed, planned, designed, funded, constructed, maintained, and removed or restored by the local public agency representing the area to which it belongs.
   
3. Requirements. Caltrans details the requirements for gateway monuments in their Project Development Procedures Manual, stating that they retain “sole discretion” for all design elements of gateway monuments. Among a list of detailed requirements, Caltrans states that the monuments must not create a distraction, must not include moving elements, and must not display symbols or icons such as flags, logos, or commercial symbols. Caltrans also requires that monuments be placed as far as practical from the roadway while still being visible. They limit each city or community to one community identification or gateway monument along the highway in each direction. Caltrans also requires the city to have considered alternatives, such as placing the monument away from the highway or using a community identification sign on an existing or proposed highway feature instead.
   
4. Brown vs. Caltrans: flags on overpasses. In March, 2003, the United States 9th Circuit Court of Appeals unanimously affirmed a preliminary injunction against Caltrans regarding the posting of flags or banners on overpasses. The injunction required them to apply the same permit requirements to the American flag as it would to other flags or banners on overpasses. The court case was prompted after the September 11th terrorist attacks. People began hanging American flags on overpasses and, in response, banners questioning the war in Afghanistan. Caltrans was sued because the banners were removed from the overpass by local police or California Highway Patrol, while the American flags were allowed to remain. The court rulings determined that the flags and banners had to be treated equally, considering them both as acts of expression on nonpublic property, potentially distracting, presenting similar safety risks during installation or removal as objects may be dropped on the highway. The author claims that Caltrans’ response to this court decision resulted in an overcorrection, where Caltrans disallowed flags along any state right-of-way, including on gateway monuments.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 7/10/17)

American G.I. Forum of California

American Legion-Department of California

American Legion Post 534 (Orcutt, CA)

AMVETS-Department of California

California Association of County Veterans Service Officers

California Council of Chapters

California State Commanders Veterans Council

City of Santa Maria

Military Officers Association of America

Vietnam Veterans of America-California State Council

Two individuals

OPPOSITION: (Verified 7/10/17)

None received

ARGUMENTS IN SUPPORT: A number of supporters, including a large number of veterans groups, write in support of this bill. The American Legion Post 534 in Old Town Orcutt states their strong, emotional connection with the American flag and cites their difficulties trying to include an American flag in the gateway monument for the city of Orcutt, California.

ASSEMBLY FLOOR: 77-0, 5/11/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Dahle, O'Donnell, Patterson

Prepared by:

7/12/17 9:34:36

**** END ****

SENATE COMMITTEE ON TRANSPORTATION AND HOUSING

Senator Jim Beall, Chair

2017 - 2018 Regular

Bill No: Hearing Date: 6/27/2017

SUBJECT: .

DIGEST: This bill allows cities or counties to display the United States flag and/or the California state flag as part of a gateway monument so long as the flags are maintained by the city or county.

ANALYSIS:

Existing law authorizes the Flag of the United States of America and the Flag of the State of California to be displayed on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag holder and the method of its installation and maintenance are not in violation of the Department of Transportation’s (Caltrans’) rules.

This bill:

1. Authorizes a city or county to display the Flag of the United States of America or the Flag of the State of California, or both, as part of a gateway monument if the flags are maintained by the city or county.
   
2. Defines a “gateway monument” as any freestanding structure or sign, or non-integral or non-required highway feature, constructed within the state’s right-of-way, which communicates the name of the city or county.

COMMENTS:

1. Purpose. According to the author, “By California law, The Flag of the United States of America flies over every public building; every state park; every university, college, high school, and elementary school campus; every agricultural station; every highway maintenance section; and at all games in stadiums or bowls throughout California. But the California Department of Transportation forbids the Flag of the United States and the Flag of the State of California from flying over gateway monuments. AB 866 updates the [statutory authority of the] California Department of Transportation to allow the Flag of the United States of America and the Flag of the State of California over gateway monuments (monuments communicating the name of a city or county).”
   
2. Gateway monuments. A gateway monument, which is defined by this bill, is a freestanding sign or structure along a highway that displays the name of the city and often contains the city’s seal or slogan. Differing from a community identification sign that may be painted onto an existing feature like a bridge, gateway monuments are considered to be discretionary fixed objects; they’re neither integrated with nor placed upon any required engineered transportation feature like a bridge, but rather stand alone. According to Caltrans’ documentation, the monuments are proposed, planned, designed, funded, constructed, maintained, and removed or restored by the local public agency representing the area to which it belongs.
   
3. Requirements. Caltrans details the requirements for gateway monuments in their Project Development Procedures Manual, stating that they retain “sole discretion” for all design elements of gateway monuments. Among a list of detailed requirements, Caltrans states that the monuments must not create a distraction, must not include moving elements, and must not display symbols or icons such as flags, logos, or commercial symbols. Caltrans also requires that monuments be placed as far as practical from the roadway while still being visible. They limit each city or community to one community identification or gateway monument along the highway in each direction. Caltrans also requires the city to have considered alternatives, such as placing the monument away from the highway or using a community identification sign on an existing or proposed highway feature instead.
   
4. Brown vs. Caltrans: flags on overpasses. In March, 2003, the United States 9^th Circuit Court of Appeals unanimously affirmed a preliminary injunction against Caltrans regarding the posting of flags or banners on overpasses. The injunction required them to apply the same permit requirements to the American flag as it would to other flags or banners on overpasses. The court case was prompted after the September 11^th terrorist attacks. People began hanging American flags on overpasses and, in response, banners questioning the war in Afghanistan. Caltrans was sued because the banners were removed from the overpass by local police or California Highway Patrol, while the American flags were allowed to remain. The court rulings determined that the flags and banners had to be treated equally, considering them both as acts of expression on nonpublic property, potentially distracting, presenting similar safety risks during installation or removal as objects may be dropped on the highway. The author claims that Caltrans’ response to this court decision resulted in an overcorrection, where Caltrans disallowed flags along any state right-of-way, including on gateway monuments.
   
5. Arguments in support. A number of supporters, including a large number of veterans groups, write in support of this bill. The American Legion Post 534 in Old Town Orcutt states their strong, emotional connection with the American flag and cites their difficulties trying to include an American flag in the gateway monument for the city of Orcutt, California.

Assembly Votes:

Floor: 77-0

Appr.: 16-0
Judiciary: 11-0

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

POSITIONS: (Communicated to the committee before noon on Wednesday,

June 21, 2017.)

SUPPORT:

American G.I. Forum of California

American Legion-Department of California

American Legion Post 534 (Orcutt, CA)

AMVETS-Department of California

California Association of County Veterans Service Officers

California Council of Chapters

California State Commanders Veterans Council

City of Santa Maria

Military Officers Association of America

Two Private Individuals

Vietnam Veterans of America-California State Council

OPPOSITION:

None received.

-- END --

Date of Hearing: May 3, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 866

Author:(Cunningham) – As Introduced Ver:February 16, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows a city or county to display the Flag of the United States of America or the Flag of California, or both, as part of a “gateway monument”—a structure or sign within the highway right-of-way that communicates the name of the city or county—if the flags are maintained by the city or county.

FISCAL EFFECT:

Negligible fiscal effect.

COMMENTS:

Purpose and Background. According to the author, "Caltrans currently does not allow the Flag of the United States of America, or the flag of the State of California, on state right-of-ways, including gateway monuments." The author claims that in the wake of Brown v. Department of Transportation, the department "overcorrected by disallowing all flags on state right of ways." This bill will correct that overcorrection, the author believes, by expressly allowing the display of the flag on gateway monuments.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: April 25, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 866

Author:(Cunningham) – As Introduced Ver:February 16, 2017

PROPOSED CONSENT

SUBJECT: State highways: gateway monuments

KEY ISSUE: should cities and counties be authorized to display the Flag of the United States or the Flag of Califonria on a "Gateway Monument"?

SYNOPSIS

Existing law authorizes the display of the Flag of the United States or the Flag of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag and the methods of installation and maintenance do not violate Department of Transportation rules. This bill would authorize a city or county to display the U.S. or California flag, or both, as part of a "gateway monument." A gateway monument includes any freestanding structure or sign, constructed within the state's right of way, which communicates the name of the city or county to motorists or others as they enter the city or county. There is no opposition to this bill.

SUMMARY:

1. Authorizes a city or county to display the Flag of the United States of America or the Flag of California, or both, as part of a gateway monument if the flags are maintained by the city or county.
2. Defines "gateway monument" to mean any freestanding structure or sign, or non-integral or non-required highway feature, constructed within the state's right-of-way, which communicates the name of the city or county.

EXISTING LAW authorizes the display of the Flag of the United States of America or Flag of the State of California to be displayed on a sidewalk located in or abutting on a state highway situated within a city, if the type of flagholder and the method of its installation and maintenance are not in violation of the Department of Transportation's rules. (Streets and Highways Code Section 670.5.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Existing law authorizes the display of the Flag of the United States or the Flag of California on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag and the methods of installation and maintenance do not violate Department of Transportation rules. This bill would, additionally, authorize a city or county to display the U.S. or California flag, or both, as part of a "gateway monument." A gateway monument includes any freestanding structure or sign, constructed within the state's right of way, which communicates the name of the city or county to motorists or others as they enter the city of county.

According to the author, this bill is necessary because of a policy that the Department of Transportation adopted in response to a 2003 decision by the U.S. Ninth Circuit Court of Appeals in Brown v. California Department of Transportation. In that case, private individuals had hung American flags from a highway overpasses along Highway 17 near Santa Cruz, apparently in response to the September 11, 2001, terrorist attacks. Subsequently, two other persons hung an anti-war banner next to the flags, apparently in response to President Bush's claim that the nation was now engaged in a "war" on terror. Although the banners were apparently removed by a Scotts Valley police officer, the Department of Transportation stated in its pleadings that it would have removed them for traffic safety reasons, because a banner may only be hung from a highway overpass pursuant to an authorizing permit. The American flag, however, was not removed, though apparently whoever hung the flag had not acquired a permit and the flag was arguably just as distracting to motorists as the banner. The Ninth Circuit affirmed a district court injunction against the department's policy of exempting American flags from permit requirements but requiring permits for, or prohibiting altogether, the display of all other expressive signs and banners. (Brown v. California Department of Transportation (2003) 321 F.3d 1217.) In short, the First Amendment requires the department to treat flags and expressive banners equally, either requiring both to have a permit or requiring neither to have a permit.

The Committee has been unable to confirm the author's claim that the Ninth Circuit ruling caused the Department of Transportation to prohibit any flags on any state right-of-way. If the department did prohibit all flags in the manner suggested by the author, it was certainly not required to do so by the Ninth Circuit ruling. The department is still free to ban all flags and banners, freely allow all flags and banners, or only allow flags and banners pursuant to a permit. Moreover, the issue in Brown involved flags and banners hung from a highway overpass, which may present unique safety concerns, not with flags displayed as part of a gateway monument. Finally, the Brown ruling did not prohibit the department from authorizing flags. The Brown ruling merely said that, if the department has a policy on permitting flags and banners, the policy must be "reasonable." The court concluded that the department's apparent policy of allowing flags without a permit was unreasonable because there was no discernable difference between the distraction caused by a flag and the distraction caused by a similarly sized banner.

ARGUMENTS IN SUPPORT: According to the author, "CalTrans currently does not allow the Flag of the United States of America, nor the flag of the State of California, on state right of ways, including gateway monuments." The author claims that in the wake of Brown v. Department of Transportation, the department "overcorrected by disallowing all flags on state right of ways." This bill will correct that overcorrection, the author believes, by expressly allowing the display of the flag on gateway monuments.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334