May 10, 1982

Mr. Paul A. Mueller 
City Attorney 
Town of Oacoma 
Box 186 
Chamberlain, South Dakota 57325

Official Opinion No. 82-29

Licensure Fee of Outdoor Advertising

Dear Mr. Mueller:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

In August of 1981, the Board of Trustees for the town of Oacoma passed an ordinance for the control of billboards within the jurisdiction of the town. Included in this ordinance was a section pertaining to an annual fee for keeping and maintaining billboards within the town.  On February 1, 1982, owners of billboards within the jurisdiction of the town were given notice to make payment of the permit fee.  Subsequently, several billboard owners refused to pay the permit fee based upon SDCL 31-29-71.

Based upon the facts, you have asked the following question:

QUESTION: 

Whether the bar against permits in SDCL 31-29-71 preempts the local government's authority to control outdoor advertising pursuant to 23 U.S.C. 131(d), as applied in 13 CFR §  750.708(d).

SDCL Chapter 31-29 Highway Beautification and Regulation of Advertising was revamped in 1977 by the South Dakota Legislature. SDCL 31-29-71 specifically states: 

Outdoor advertising shall be subject to personal property tax and shall not  be subject to any permit, license or other special fee for either erection or maintenance or other purpose whatsoever.

Based upon the above statutory provision, it is my opinion that the South Dakota Legislature intended that no public entity, state or local was authorized to create licensure or permit fees concerning outdoor advertising. Given this strict mandate from the Legislature and absent any other state provision authorizing a local entity to enact an ordinance concerning outdoor advertising fees, the ordinance concerning billboard fees is in violation of SDCL 31-29-71.

Moreover, it is my opinion that the federal provisions cited in your question do not preempt SDCL 31-29-71.  Therefore, the city ordinance passed by the Board of Trustees for the town of Oacoma concerning outdoor advertising fees is in violation of the legislative prohibition in SDCL 31-29-71 and in excess of its powers.

Respectfully submitted,

Mark V. Meierhenry
Attorney General