Are sign companies or real estate brokers subject to the "call before you dig" statute when digging a post hole for a yard sign? We have answers...
In recent weeks, a number of real estate sign companies in Washington State have been contacted by the Utilities and Transportation Commission (UTC) regarding compliance with the state’s underground utility safety law, or “call 811 before you dig” law. This statute, codified at RCW Chapter 19.122, is implemented and enforced by the UTC, and requires that underground utilities be marked before an excavation occurs. Prior to legislation in 2011, UTC interpreted the law to apply to the installation of certain signposts, including real estate signs. This requirement was made explicit in 2011, at which time REALTORS® sought an exemption for sign installation that the UTC opposed. The signage exemption was also opposed by gas, telecom, water utilities, and local governments based on evidence of damage to underground utilities caused by sign installation.
Below is prior information sent by the Legal Hotline in 2013 on this topic:
Q: Are sign companies or real estate brokers subject to the ""call before you dig"" statute when digging a post hole for a yard sign? If a sign company or broker provides the sign to the owner and the owner puts it in the ground does the broker still have liability regarding the Dig Law?
A: Yes. The "Call Before You Dig" law requires a person who intends to dig or excavate to call "811" 48 hours prior to digging so that any underground utilities may be marked and thus, avoided, during the digging. While it may seem unlikely for a post hole digger to contact, much less damage, an underground utility, it can and does happen. As a result, even the simple act of digging a single post hole is subject to the state law that requires calling "811" before the hole is dug.
The definition of "excavation" subject to the statute is: "any operation in which earth, rock, or other material on or below the ground is moved or otherwise displaced by any means . . ." RCW 19.122.020(4). Any person who engages in an "excavation" is subject to the statute. There is an exception for the owner of non-commercial property who digs no more than 12 inches deep but the exception does not apply to agents of the property owner. RCW 19.122.060. Moreover, it is the understanding of the Hotline lawyer that most post holes for yard signs typically exceed 12 inches in depth.
If a person digging fails to comply with the statute and an underground utility is damaged, the person digging is liable for repair of the damage and a civil penalty of up to $10,000 depending on the nature of the utility that is damaged.
This is not a new statute but legislation in 2011 created enhanced enforcement and dispute resolution procedures through the State Utilities and Transportation Commission. Accordingly, when intending to dig a post hole for a yard sign, it is imperative to call "811" and schedule a utility locate at least 48 hours prior to digging the post hole. If a yard sign is required prior to utilities being marked, a smaller, temporary sign should be used, that does not require digging.
Because the post hole required for most real estate yard signs is more than 12 inches, the "owner" exception will not protect property owners who dig their own post holes. If the owner has a problem, it is unlikely that the owner will absorb the liability willingly if owner figures out that broker gave owner the sign to post so that broker could avoid the responsibilities of the Dig Law.